State of New South Wales v Cadia Holdings Pty Ltd

Title to royal mines at common law 99 The grants did not pass property in the royal metals, gold and silver: see Case of Mines; The Queen v Earl of Northumberland (1568) 1 Plowden 310; 75 ER 472 at 511; Woolley v Attorney-General (Vic) (1877) 2 App Cas 163. As explained by Windeyer J in Wade v New South Wales Rutile Mining Pty Ltd [1969] HCA 28; 121 CLR 177 at 186, "[n]o express reservation was necessary to preserve the Crown's rights [in gold]." (A different result could be achieved by the constitutional transfer of "property" of the State to the Commonwealth, pursuant to ss 51(xxxi) and 85 of the Constitution: see The Commonwealth v New South Wales [1923] HCA 34; 33 CLR 1 at 37-38 (Isaacs J).) Nor was it in dispute in the present case that the gold in the specified land was a publicly owned mineral. The question is whether the State ownership of the gold, in mineral form, extended to copper, also in mineral form, which was not recoverable from the land separately from the gold. 100 The parties treated the answer to this question as depending upon the effect of British law as received in the colony of New South Wales and in force on 25 July 1828: Australian Courts Act 1828 (Imp), s 24. A suggestion that the relevant common law had, in this respect, been affected by the Crown Land Sales Act 1842, conferring on colonial governors the power to dispose of waste lands of the Crown, was rejected in Woolley, at 167. No other legislation between reception of the common law and the date of the grants in the present case was said to have affected the common law principles. Nor was it contended that the common law, as reflected in the Case of Mines had otherwise altered to accommodate social or technological changes which had taken place by the time of the land grants: cf Brodie v Singleton [2001] HCA 29; 206 CLR 512 at [108]. 101 The Case of Mines affirmed not merely that any gold or silver in the land of a subject was owned by the Crown, but also any "base metal" which was found in the mine, even if the value of the base metal exceeded the value of the gold or silver: 75 ER at 511: set out by Handley AJA at [133] below. 102 The Case of Mines created a difficulty in holding that the owner of the land would be entitled to a mine of copper, but only one "in which there is no gold or silver". The reporter, Plowden, noted that even in Roman times Agricola had identified that gold and silver "is naturally in copper" and that "silver is naturally in iron and lead", so that "there is naturally in these base metals some portion of gold or silver": 75 ER at 515. Indeed, Heton's Account of Mines (1707) went somewhat further, at p 17: "… the Crown has been intituled to all the Mines of any sort of Metals; for we having yet discovered no mine of Gold or Silver , that was pure and unmixed and needed no refining : And all Writers of Metals agreeing and affirming, that there is naturally some proportion of Gold or Silver in every other Metal; and the Smelters and Refiners making it evident, that there is in Copper naturally Gold and Silver, and in Lead, Iron and Tinn naturally Silver. Upon this account and reason, all Mettals whatsoever might be claimed by the Prerogative, and the Crown intitled to them; for there is not any such Mine either in this Kingdom or elsewhere, which hath not some Gold or Silver in it." 103 If that were so, any copper or lead mine would, on the authority of the case, be owned by the Crown, so long as the means of extracting the gold or silver were available. It appears that technological developments in the means of extracting and refining gold and silver, at least in part, gave rise to the statutes of 1688 and 1693. No doubt the means of extraction improved greatly since the 16th century, but as late as 1900, Darley CJ noted in Attorney-General v Great Cobar Copper Mining Co [1900] 21 LR (NSW) 351 at 357: "This was a copper mine, and possibly when the defendants selected this land they did not know that the copper contained gold, and possibly there were not the means of extracting the gold from the copper in this colony. It now turns out, however, that there was a large quantity of gold in the copper, and when the copper was sent to England the quantity of gold extracted from the copper for two years was 18,765 oz, and the question is, to whom does it belong?" 104 The answer to that question is not of direct assistance, because it turned upon the terms of the grant and the case was not concerned with ownership of the copper. However, the factual circumstance exemplified the uncertainty as to the extent of the Crown prerogative, as explained in the Case of Mines and as disclosed in the recitals to the 1688 Act.

The 17 th century statutes 105 The purpose of the 1688 Act, as reflected in s 1 (the recital section), was to address circumstances where technological developments in melting and refining metals had allowed for the extraction of gold and silver where, implicitly, that had not previously been possible. The avowed purpose of the 1688 Act was to repeal a prohibition in an earlier statute against "the multiplying gold and silver". Since well before 1688, the term "multiply" had meant no more than to increase in quantity or to augment by accumulation or repetition: see Oxford English Dictionary (online). Absent statutory amendment, conduct amounting to the felony of multiplying gold or silver, with all that followed from a conviction for a felony, would have provided a powerful disincentive to opening a mine which was rich in other valuable minerals. 106 After repealing 5 Hen 4 c 4, the 1688 Act enacted that "… all the gold and silver that shall be extracted by the aforesaid art of melting and refining of metals … be from henceforth employed for no other use or uses whatsoever, but for the increase of moneys …": s 3. The subject matter of this section was not mines or ores, but any gold or silver extracted therefrom. The second limb of s 3 provided for the sole place of "disposal thereof", namely their Majesties' Mint within the Tower of London. 107 The third limb, to which it will be necessary to return, provided that "they", apparently being persons responsible for extracting the metals from the ore, "are to receive the full and true value for their gold and silver so extracted". The final limb of s 3 reiterated that no other use or disposition of gold or silver, so refined and extracted, was permitted. 108 Section 4 was not concerned with the extracted metal, but rather mines of copper, tin, iron or lead which, it was declared, should not be "adjudged, reputed or taken to be a Royal mine, although gold or silver may be extracted out of the same". The need for this provision arose, at least in part, from the temporal ambiguity of the term "mine". In broad terms, a mine may be an ore body or the working thereof. Metal, once extracted and refined, is no longer part of a mine. The concern which appears to be reflected in s 4 is that a body of ore may be worked over time with the result that, although not originally known to contain gold or silver, it may be found to hold gold or silver after an initial quantity has been extracted and refined. 109 So far as the third limb of s 3 was concerned, the requirement that the Crown pay for gold and silver which had been extracted and refined, was arguably inconsistent with any pre-existing right of ownership of those metals. If it were not the intention of the Act to override the royal prerogative with respect to royal mines, the Act must have been intended to apply to lesser quantities of gold and silver admixed with one of the four ores. The question left open was how much gold or silver might be found in a "mine of copper" without it being a royal mine. 110 Whatever the precise scope of the 1688 Act, it was clearly not intended to repeal the royal prerogative with respect to royal mines, nor does it address the question expressly answered in the Case of Mines, namely the right of the Crown to other metals taken from a mine of gold or silver. Indeed, if the 1688 Act were thought to have operation in the present circumstances, presumably the State would have been required to pay for the gold extracted from the mine. That was not proposed by the respondents. 111 The 1693 Act (although no longer in force in this State) may be considered to the extent that it clarifies the operation of the 1688 Act. It was entitled, "an Act to prevent Disputes and Controversies concerning Royal Mines". It recited the terms of s 4 of the 1688 Act, describing it as "the good provision [made] by the said Statute to prevent the discouraging of Their Majesties' good Subjects, who have Mines of Copper, Tin, Iron or Lead in their Soils, from digging and opening the same": s 1. The new statute was said to be "for the better explanation of" the earlier statute. 112 Section 2 was directed to persons that "are or shall hereafter be the Owner or Owners, Proprietor or Proprietors, of any Mine or Mines … wherein any Ore now is, or hereafter shall be discovered … and in which there is Copper, Tin, Iron or Lead". The owners of such mines were to enjoy the same, continue in possession thereof and be entitled to dig and work the said mines "notwithstanding that such Mine or Mines or Ore shall be pretended or claimed to be a Royal Mine …". This section was an extrapolation of s 4 of the 1688 Act, providing a more complete protection from any interference by the Crown in relation to such mines. It was based on an assumption of private ownership of the mines in question. 113 There was no repetition of the requirement that gold and metal extracted from such mines had to be sold to the Crown for full and true value: rather, the Crown was given a right of pre-emption with respect to the ore, before any extraction or refinement took place, but after the ore had been removed from the ground, washed and made clean and merchantable. A schedule of prices was enacted, being ₤16 per ton for copper, ₤2 per ton for tin and iron and ₤9 per ton for lead. In default of an exercise of the Crown's right of pre-emption, the owners and proprietors of the mines were entitled to sell and dispose of the ore for their own uses. 114 It appears to have been assumed in various cases that the schedule of prices was, at least when enacted, above the merchantable value of such ore. It is surprising that a single price could be fixed for a ton of, say, ore containing lead, wherever found: cf Bainbridge W, A Practical Treatise on the Law of Mines and Minerals (1841) pp 46-47. But in any event the relationship between the generally payable market prices and those in the schedule is obscure. In 1815, the price payable for lead ore was raised to ₤25 per ton, but the prices payable for other ores were not changed: 55 Geo 3 c 134, referred to by North J in Attorney-General v Morgan [1891] 1 Ch 432 at 446. (The absence of variation in the other prices may have been due to the fact that "[n]either of the royal metals … are usually found [in the UK] in union with any other metals but lead", from which silver was commonly extracted: Bainbridge, p 46.) 115 Perhaps curiously, gold and silver were referred to only in the recital to the 1693 Act, describing the effect of s 4 of the 1688 Act. Nevertheless, the operative provisions of the 1693 Act, being by way of clarification, must be understood to have applied to mines of copper, tin, iron or lead from which ore containing gold and silver had been obtained and the gold or silver extracted. 116 If any more historical detail is available than that which emerges from the discussion in the judgment of the Chief Justice, it was not before this Court. Accordingly, a contextual understanding of the circumstances giving rise to the 1688 and 1693 Acts is largely missing. Such assumptions as may be made are fraught with uncertainty: cf Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 at 184 (Gummow J). For example, even if sense could be made of a standard rate for a ton of copper ore, no obvious inference can be drawn with respect to the quantity of gold or silver which would be necessary to make its purchase by the Crown profitable. 117 In truth, the 1688 and 1693 Acts are only indirectly relevant: what is sought to be inferred from statutes which did not deal with royal mines explicitly, was a limit on the concept of a royal mine. Whether the parameters of the concept, or its application to particular ores, will have changed over the centuries was not addressed. Perhaps following Plowden's note to the Case of Mines, the parties put in evidence detailed reports as to the operations, costs, quantities of ore recovered, value of metals extracted and royalties paid, broken down according to the specified land and other land. However, this Court was not taken through that evidence, the parties implicitly accepting that such information could not assist in determining whether the ore body constituted a royal mine at the date of grant, on the basis of concepts derived from 17th century English statutes and the earlier common law. Nevertheless, reference was made to the relative quantities of copper and gold extracted, to their value and to the financial viability or otherwise of a mining operation seeking one or the other, but not both. However, even assuming a degree of price stability unknown in modern times, it is not clear that, under the general law, an auriferous lode ceased to be a royal mine when its extraction was not likely to be profitable, or became a royal mine if the value surpassed the cost of recovery. 118 In the statement of the law to be found in a passage from Bainbridge, set out by the Chief Justice at [17] above, the author stated (in 1843) that "the opinion of the nine judges [in the Case of Mines] does not appear to have gained the acquiescence of more recent lawyers". After referring to the opinion of 15 leading counsel provided in 1640, which he stated "seems to have been generally adopted" (at p 43), Bainbridge continued: "But considerable difference of opinion still prevailed in many instances with respect to the actual fact of the royal metals bearing the charges of refinement." 119 What weight this Court is required to accord to the opinions of counsel, and differences of opinion, as compared with the judgment in the Case of Mines, was not explored in argument. However, both the author and the opinion to which he referred expressly treated the critical issue as the cost of refinement, it being the new technological skills which appear to have caused disquiet about the effect of the Case of Mines some 70 years later. This may be identified in the opinion itself (admirably succinct by modern standards) published in Heton's Account of Mines (1707) at p 26: "Altho' the Gold or Silver contained in the base Metal of a Mine in the Lands of a Subject, be of less value than the base Metal; yet if the Gold or Silver do countervail the charge of refining it, or be of more worth than the base Metal spent in refining it: This is a Mine-Royal, and as well the base metal, as the Gold and Silver in it, belong to the Prerogative of the Crown."

Conclusions 120 All that can be said with a reasonable degree of certainty is that the statutes relied upon by the respondent arose from changes in metallurgical practices which allowed the extraction of gold or silver from ores from which previously they might not have been obtained. The royal mine, which the Crown was entitled to open by entering as of right on private land and the recovery of which the Crown could prevent if the owner attempted it, was, as the Case of Mines held, an indivisible ore body to the whole of which the Crown was entitled. Nothing in the statutes changed that principle. 121 There was no suggestion in the present case that the body of ore did not include a royal mine or, in statutory terminology, a publicly owned mineral. Under the Mining Act, questions of pre-emption no longer apply and no person may undertake mining activities without an appropriate mining tenement. Nevertheless, the principles for determining the ownership of the ore body remain the same. The case may be determined on the basis of three factual premises: namely, (a) the ore contains gold which is conceded to be a publicly owned mineral; (b) other minerals within the ore, and in particular copper, cannot be recovered from the mine separately from the auriferous ore, and (c) it is conceded that the Crown's ownership of the gold was not affected by the 1688 or 1693 statutes. 122 If it be necessary, I would also invoke the principle, properly applicable to statutes passed in the 17th century, that the prerogative is not to be displaced or restricted by statute in the absence of clear words, as explained by Handley AJA. This is not a case in which the competition is between the prerogative arising under the common law and a power or right arising under statute. In such a case, it may often, perhaps usually, result in the conclusion that "where a matter within the prerogative is provided for by statute, the prerogative is merged in the statute": In re De Keyser's Royal Hotel Ltd; De Keyser's Royal Hotel Ltd v The King (1919) 2 Ch 197 at 216-217, quoted by Isaacs J in The Commonwealth v New South Wales, 33 CLR at 39; Attorney-General v De Keyser's Royal Hotel Ltd [1920] AC 508; Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [33]-[41] (Black CJ, dissenting) and [181]-[185] (French J, Beaumont J agreeing). Rather, this was a case involving competition between public rights vested in the Crown (and now the State) and the rights of private individuals as landowners. That approach to statutory construction is consistent with the principle that grants by the Crown are construed against the grantee and not in his or her favour, in circumstances in which the prerogatives and rights of the Crown are diminished by the grant: see Brantag, URJ p 8 and authorities there referred to, including The Rebeckah (1700) 1 C Rob 226; 165 ER 158 at 159. 123 None of that is to deny the constitutional significance of the statutes. The prerogative of the Crown did not merely confer on the Crown ownership of royal mines, but with it the right to enter upon lands held in freehold by subjects of the Crown, to search and recover gold and silver, with the potential to cause significant disruption and destruction of otherwise valuable property. Thus, in describing the change made by the 1693 Act, Heton noted at p 34: "The People of England did so very much oppose the Patentees and Society for Royal Mines [being those entitled to mine under authority of the Crown for royal metals], and endeavour to conceal their Mines, or took but little or no pains to find them, because the Proprietors thereof were to have no advantage by them, if they should prove Royal , nor the least share of the Profit … for though we find in many of the Grants made by the Crown of Royal and other Mines, a Clause to oblige the Grantees or Patentees to make recompence to the Proprietor of the soil for all damage done to it: Yet this was little regarded, Mens Lands being torn up to the very Bowels, and covered with Heaps of Rubbish, and High-ways made over their Corn and Pasture-land, without paying any consideration for the same, to the great Grievance and Oppression of the Subject." 124 To similar effect, reference was made in argument in the Case of Mines to provision in the statute of Magna Carta by which the King conceded that he would not take "any man's wood for our castles, or other our necessaries to be done, but by the license of him whose the wood is": 75 ER at 490. Thus it is clear that a major concern to which the statutes were addressed was the protection of the proprietor of lands from the arbitrary intrusion of the Crown, or its licensees, if gold or silver were to be found by the act of refining recovered ore. 125 For these reasons, and the further reasons given by Handley AJA with which I agree, the following orders should be made:

(1) Allow the appeal and set aside the orders and declarations made in the Equity Division on 16 June 2008.

(2) Declare that the copper in the specified land is a publicly owned mineral for the purposes of the Mining Act 1992 (NSW).

(3) Order that the respondents repay to the Minister all moneys paid to them in execution of the judgment in the Court below together with interest from the date of such payment until the moneys are repaid, calculated at the rate prescribed in the Fifth Schedule to the Uniform Civil Procedure Rules 2005.

(4) Order the respondents to pay the appellants' costs of the appeal and in the Court below. 126 HANDLEY AJA: This appeal by the State from the judgment of Hamilton J raises for decision the ownership of the copper mixed with the gold in the ore bodies of the Cadia Valley Mines near Orange in land owned by the respondent companies. The dispute relates to the ore from the Cadia Mine, and to part of the ore from the Cadia Extended Mine. It is common ground that none of the relevant Crown grants contained a reservation of copper to the Crown. It is also common ground that the Crown owns the gold in the land the subject of those grants. 127 Hamilton J found that from the time mining operations began in 1998 until December 2007 the value of the gold extracted from the Cadia Mine and the relevant sections of the Cadia Extended Mine exceeded the value of the copper extracted from the same ore, the relevant figures being $1.39 billion in respect of the gold and $907 million in respect of the copper. He also found that the gold and copper are intermingled in the ore so that neither can be mined separately and the mines could not be conducted economically to recover either the gold alone or the copper alone. 128 The Crown claims that although the copper was not reserved to it in the relevant Crown grants it nevertheless owns the copper pursuant to the prerogative right to gold mines or Royal mines. 129 Mining operations are being conducted by the respondents under leases granted pursuant to the Mining Act 1992 which binds the Crown (s 3). Section 11(1) provides: "for the purposes of this or any other Act or law, it is declared that any mineral that is lawfully mined becomes the property of the person by or on behalf of whom it is mined at the time the material from which it is recovered is severed from the land from which it is mined." 130 Section 282(1) makes the holder of a mining lease liable to pay royalty to the Minister on publicly owned minerals, in this case the gold, recovered under the lease. Section 284(1) imposes a similar obligation on the mining leaseholder in respect of privately owned minerals, but s 284(2) obliges the Minister to account for 7/8ths of those amounts to the private owner. Section 379 provides: "Except as expressly provided by this Act, this Act does not affect any prerogative of the Crown in respect of gold mines and silver mines." 131 The dictionary in the Act provides that privately owned mineral means a mineral that is not owned by or reserved to the Crown. The gold in the ore from these mines in situ was a publicly owned mineral. The companies claim that the copper was a privately owned mineral because it was not reserved in the Crown grants whereas the State claims that because the mines are gold mines it owns the intermixed copper as well as the gold. 132 The resolution of this dispute requires the Court to embark on a journey into legal history which must start from The Case of Mines: Attorney General v Earl of Northumberland (1568) 1 Plowden 310 [75 ER 72] which reviewed the Crown's prerogative over mines of gold and silver. The case was heard by all the judges and barons of the Courts of Common Law who ruled unanimously (75 ER at 510): "that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belonged to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with such other incidents thereto as are necessary to be used for the getting of the ore". 133 The majority, with the dissent of three, agreed [75 ER at 511]: "… that if the gold or silver in the base metal in the land of the subject be of less value than the base metal is, (sic) as well the base metal as the gold or silver in it belonged by prerogative to the Crown, with liberty to dig for it, and to put it upon the land of the subject, and to carry it away from thence; and in such case it shall be called a mine royal, for the records don't make any distinction herein, that they are general, and prove that all ores or mines of copper, or other base metal, containing or bearing gold or silver belonged to the King … for the precedents and the accounts prove that from time to time it has been a custom and usage, that the Kings of this realm have had the profit of such mines of base metal containing or bearing gold or silver, without any distinction with regard to the value of the gold or silver, be the same greater or less than the base metal. Wherefore … the whole ore and mine belonged to the Queen, although the base metal be of the greater value … Also they all agreed, that if the ore or mine in the soil of the subject be of copper … in which there is no gold or silver, in this case the proprietor of the soil shall have the ore or mine, and not the Crown by prerogative, for in such barren base metal no prerogative is given to the Crown." 134 The width of the prerogative thus established or confirmed discouraged mineral exploration and development on privately owned land and after the Glorious Revolution Parliament passed the Royal Mines Acts 1688 and 1693. The former, but not the latter, was continued in force by the Second Schedule of the Imperial Acts Application Act 1969. Section 4 of the 1688 Act provided: "… no mine of copper … shall hereafter be adjudged, reputed or taken to be a Royal Mine, although gold or silver may be extracted out of the same." 135 The recital of the 1693 Act referred to s 4 of the 1688 Act and continued: "But notwithstanding the good provision by the said Statute to prevent the discouraging their Majesties' good Subjects who have mines of Copper … in their Soils, from digging and opening the same, many Doubts and Questions have arisen upon the said Statute, whereby great Suits and Troubles have arisen to many Owners and Proprietors of such Mines; wherefore, for the better Explanation of the said Statute" 136 Section 2 of that Act then provided: "Be it enacted and declared … that all and every Person or Persons, being subjects of the Crown of England … that now are or hereinafter shall be the Owner or Owners, Proprietor or Proprietors, of any Mine or Mines within the Kingdom … wherein any Ore now is, or hereafter shall be discovered, opened, found, or wrought, and in which there is Copper … shall and may hold and enjoy the same Mine or Mines and Ore, and continue in the Possession thereof, and dig and work the said Mine or Mines or Ore, notwithstanding that such Mine or Mines or Ore shall be pretended or claimed to be a Royal mine or Royal mines; any Law, Usage, or Custom to the contrary notwithstanding." 137 Section 3 gave the Crown a right of pre-emption at fixed prices over ores containing mixtures of one of the listed base metals and one or more of the Royal metals. Section 2, read in isolation, could be construed as applying to any mine "in which there is copper … " regardless of the presence of substantial gold and silver, but it has been given a narrower construction. 138 The word "mine" in s 4 of the 1688 Act ("no mine of copper", and "Royal mine") and in the recital and s 2 of the 1693 Act ("Mines of Copper", "any Mine … within the Kingdom", and "Royal Mines") and in s 379 of the Act ("gold mines and silver mines") is not limited to working mines, and it was common ground that it included undiscovered and unworked ore bodies in the land. Lord Macnaghten said in Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657, 687: "Now the meaning of the word 'mines' is not, I think, open to doubt. In its primary signification it means underground excavations or underground workings. From that it has come to mean things found in mines or to be got by mining, with the chamber in which they are contained. When used of unopened mines in connection with a particular mineral it means little more than veins or seams or strata of that mineral." 139 The 1693 Act in its application in this State remains relevant despite its repeal by the 1969 Act because it was in force at the time of the relevant Crown grants, although there were no actual mine workings until 1998. 140 The meaning of the 1693 Act was considered in Attorney General v Morgan [1891] 1 Ch 432. The defendant was extracting gold and silver bearing ore from a mine in Wales which contained traces of copper of no commercial value. The Crown claimed the gold and the silver under the prerogative and the defendant relied on the Acts of 1688 and 1693. North J held at 446 that s 4 of the 1688 Act did not protect the defendant "for no one contends that the … mine can be described fairly as a mine of copper." The defendant relied principally on s 2 of the 1693 Act and its reference to "any Mine wherein any Ore is found in which there is Copper …". North J rejected this argument at 447- 8, 450: "In my opinion, after a careful consideration of the letter and spirit of that statute, this is not its true construction. … The Act is expressly stated to be for the better explanation of the former statute - that is, of the recited section of it - mainly the fourth. It does not purport to be an addition to or extension of it so as to apply it to persons or things not affected by the former statute, but is merely an explanation of it … The allegation that the mine or ore is Royal is not to prevent the working, whether such allegation be well founded or not. If on subsequent working it turns out that the mine or ore does not contain gold or silver, then the Crown's claim has no foundation, and the subjects' right to work it is clear; in that case no protection is required and the Act does not confer any. The Act only applies to cases in which gold or silver does exist in the mine or ore worked, and in such cases protection is conferred upon persons working under that section. … Suppose, however, that with the gold ore … some copper … is found, but merely in such trivial quantities as not to be worth working, are these Acts intended to apply to such a case? For the existence of [such metal] under such circumstances would not make the mine a copper … mine, or bring its proprietor among the class of persons intended to be benefited by the Acts - the mine would be called a gold … mine and nothing else. … To sum up, both Acts of William and Mary are for the benefit of the owners or proprietors of copper … mines and no others." 141 The case went to Court of Appeal where Lindley LJ said at 455: "At Common Law all gold and silver occurring in any mine … belonged to the Crown; and if metalliferous ores contained gold or silver to such an extent as to be worth extracting, and if such ores could not be obtained without interfering with such gold or silver, the whole of such ores belonged to the Crown; and the Crown had the right to work not only gold and silver mines, but also all other mines contained gold and silver worth extracting. This was settled in the great Case of Mines . Mines containing gold or silver to such an extent as to be worth working for their extraction were called Royal mines. … The [1688] Act prevented the Crown from claiming any copper … mine on the ground that it contained gold or silver; and I apprehend that the Act also abrogated the right of the Crown to any copper … ore got from any such mine on the ground that such ore contained gold or silver … The preamble [of the 1693 Act] shews the object of the Legislature. The Legislature assumes that there is some copper … mine worth working by the owner, and then authorises him to work it, although it contains gold or silver … It is true that the statute does not use the expression copper ore … but mentions ore in which there is copper …; but the section relating to the payments to be made by the Crown, coupled with the preamble, convinces me that what the Crown was to buy or leave alone was copper ore … and not gold or silver ore containing copper … which the mine-owner would not incur the trouble and expense of working." 142 Kay LJ said at 462-3: "The second statute [of 1693] is expressed to be enacted for the better explanation of the former Act. Prima facie therefore it can only refer to the same mines as are mentioned in that statute. No doubt in the enacting part the language is changed to any mines 'in which there is copper …' … In fair grammatical construction, it appears to me that this statute only applies to mines of copper … - that is mines which are worked for the purpose of raising one or other of those metals, and the profit of which is mainly derived from such working. … The Acts are dealing, not with gold mines, but with mines of copper … What is such a mine is not determined by them, and there may, doubtless, be imagined a case where the gold was such that the value of the gold and copper per ton of ore was nearly the same, and where it would not pay to work the mines for one of these metals without the other, and it might be difficult in such a case to say whether the mine should be called a copper mine or a gold mine. Probably any Court before which the question came would be inclined to give the mine-owner the benefit of such a doubt." 143 The prerogative, as interpreted in The Case of Mines, has been treated as part of the common law introduced into the former settled colonies on settlement: Woolley v Attorney General of Victoria (1877) 2 App Cas 163, 166; Attorney General of British Columbia v Attorney General of Canada (1889) 14 App Cas 295, 302. Thus the prerogative right of the Crown to gold mines and silver mines formed part of the law of New South Wales in 1992 when it was preserved by s 379 of the Act. The Solicitor-General declined to argue that the 1693 Act had never been part of the law of the State, although the right of pre-emption at fixed prices conferred on the Crown by that statute was incapable of application in a settled colony. Cf Attorney General v Great Cobar Copper Mining Co. (1900) 21 NSWLR 351, 354, 356. 144 At common law, in accordance with The Case of Mines, the Crown would have owned the copper in these mines. For this purpose a gold-copper mine was a gold mine or a Royal mine. The statutes of 1688 and 1693 withdrew copper mines from the prerogative although the ore contained appreciable quantities of gold and silver which were of commercial value, provided the mines could fairly be described as copper mines. Attorney General v Morgan [1891] 1 Ch 432 decided that after the 1688 and 1693 Acts those mines which could fairly be described as gold mines remained within the prerogative although the ore contained small non commercial quantities of copper. 145 The evidence and Hamilton J's findings established that the Cadia Mines are not fairly described either as gold mines, or as copper mines. They can only be described as gold-copper mines, just as the mines in Broken Hill were described as silver-lead-zinc mines. The question for this Court is whether gold-copper mines are "copper mines" within the 1688 and 1693 statutes or whether they remained within the prerogative. 146 In my judgment to describe these mines as copper mines would be to underdescribe them to the point of misdescription as Kitto J said, in a very different context, in Ready Mixed Concrete (Victoria) Pty Ltd v FCT (1969) 118 CLR 177, 184. 147 The value of the gold extracted from the ore mined over the relevant period exceeded the value of the copper by a substantial margin. but I do not consider that fluctuations in ore grades and market values could change what is a gold-copper mine one month into a gold mine the next and into a copper mine the month after that. The characterisation of a mine should not fluctuate back and forth in this way. These were not copper mines during the relevant period, and their only proper description or characterisation was gold-copper mines. 148 This was not just because the value of the gold exceeded the value of the copper. They would not cease to be gold-copper mines if the value of the copper exceeded the value of the gold so long as the value of the gold content was sufficiently substantial. The Court is not concerned with the difficult questions of fact and degree which could arise in borderline cases. This is not a borderline case. 149 The 1688 and 1693 Acts do not require in terms that mines such as this should be characterised either as gold mines, and thus within the prerogative, or as copper mines and thus within the statutes. I see nothing in the Acts which excludes a mixed characterisation in a case such as this. 150 In my judgment the problem is to be resolved by applying the principle that the prerogative is not to be displaced or restricted by statute in the absence of clear words. In Barton v The Commonwealth (1974) 131 CLR 477, 488, Barwick CJ said: "… the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong." 151 Mason J said at 501: "It is well accepted that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or by… necessary implication." 152 Jacobs J said at 508: "… an intention to withdraw or curtail a prerogative power must be clearly shown." 153 The Privy Council referred to this principle in Woolley v Attorney General of Victoria (1877) 2 App Cas 163, 167-8: "… it is a recognised principle of the construction of statutes that the prerogative rights of the Crown can be affected only by express words or necessary implication." 154 The withdrawal of copper mines from the scope of the prerogative by the combined effect of the 1688 and 1693 Acts was achieved by clear words. Before those Acts the prerogative, as established by The Case of Mines undoubtedly applied to a mine that could fairly be described as a gold-copper mine. I can see nothing in those Acts, either in express words or by necessary implication, which withdrew mines of this character from the scope of the prerogative. 155 Gold mines within the Case of Mines were a continuum ranging from a pure gold mine to one in which the gold was mixed with other minerals and was a mere by product of the profitable extraction of the latter. The 1688 and 1693 Acts relevantly withdrew from the range copper mines fairly characterised as such although commercial quantities of gold were also present which would be extracted as a by product. 156 The Cadia mines were gold mines within the Case of Mines. What relevantly remained within the range of the prerogative after the 1688 and 1693 Acts were all gold mines within the Case of Mines which were not copper mines fairly characterised as such. Since the Cadia mines cannot fairly be characterised just as copper mines, they remain gold mines within the reduced range of the prerogative and the Crown is entitled to the copper as well as the gold. 157 Section 11(1) of the Act is not relevant. The mining companies, operating in accordance with their mining leases, became the owners of the gold-copper ore on its severance, and could never have been sued for trespass to land, trespass to goods, or conversion. The question in this case arises under ss 282(1) and 284(2) of the Act, and is whether the copper in the ore was a publicly owned mineral or was privately owned. Since s 11(1) makes the miner the owner of all severed ore, immediately on severance, that ore by definition is then privately owned. If s 11(1) was relevant in the application of ss 282(1) and 284(2) all minerals in the State recovered by mining would be privately owned, and s 282(1) would have no effective operation. 158 Sections 282(2) operate on the ore in situ, prior to its severance, and the question of ownership must be determined at that time. Since I have concluded that these are gold-copper mines which are within the prerogative the appeal should therefore succeed. 159 I agree with the orders proposed by Basten JA. **********

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