Wade v NSW Rutile Mining Co Pty Ltd

Wade v NSW Rutile Mining Co Pty Ltd - [1969] HCA 28 - HCA 1969 case summary — Zoe

I agree with the conclusions which my brother Justices have reached. For myself, I would wish to say that I have come to the conclusion that the language of s. 70D is too intractable for any construction other than one which denies the power to grant a mining lease where bona fide mining operations are being carried on by or with the concurrence of the owner at the time when the application for such a lease is made. I would be prepared to conclude from a survey of the Act as a whole and of Pt IV generally and Div. 4A of that Part in particular that the broad policy of the legislature was to bring mining on private land both for reserved and unreserved minerals into parallel with mining on Crown lands. This was sought to be effected by such provisions as s. 70A and particularly s. 70A (3). If that policy had been completely expressed, the grant of an authority to enter private land at a time when no mining operations were being carried on by or with the concurrence of the owner would have been sufficient to prevent any subsequent commencement of mining operations by any person, including the owner, during the subsistence of the authority to enter. But such a policy has not been carried out in the provisions of the Act, itself a patchwork and a singularly inadequate piece of legislation to govern and control such an important activity as mining. The explicit words of s. 70D leave no room for any implication which would completely assimilate the provisions of the Act as to mining on private lands for unreserved minerals to the general plan of the Act which is built upon the grant of an authority to enter. But perhaps even more importantly, the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain is pertinent to the question whether any such implication should be sought to be made. The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose the Parliament to have intended to implement. Consequently, I feel bound to give s. 70D its literal operation. Being of that mind, I also agree with the conclusions reached in the Supreme Court. I would dismiss the appeal.

[9]

Furthermore, as I read s. 70D of the Act, the appellant cannot be granted mining leases under s. 70B because at the time of his application for the leases bona fide mining operations were being carried on "by or with the concurrence of the owner". I agree with the interpretation of s. 70D adopted by the Chief Judge in Equity and by the Court of Appeal that "the application" therein referred to is an application for an authority to enter, or an application for a lease, as the case may be. This reading of the section conforms with my understanding of the other relevant provisions of the Act, viz., that an owner is not prohibited from commencing mining on his own land simply because some other person applies for an authority to enter under s. 70A. Section 70D recognizes the possibility of bona fide mining operations commencing between the time of application for authority to enter and the time of application for a lease. It seems to me that if "the application" were to mean the application for an authority to enter simpliciter there was no need for the reference to the grant of the lease because the prohibition upon the grant of an authority to enter would be, of itself, sufficient. Subject to s. 70BA it is only a person with an authority to enter who can apply for a lease, and, if the only significant date is the time when the application for an authority to enter is made, the existence of mining then would, of itself, prevent the granting of a lease without express words prohibiting the granting of the lease. It seems to me that the inclusion within the prohibition of the granting of a lease was intended to add something of significance to the section. It may be added that if the construction of s. 70D that commends itself to me be correct there is a further reason for not regarding the application for or the grant of an authority to enter and search as precluding an owner from mining so long as the authority remains in force. The refusal of a lease does not, of itself, terminate such an authority over a property, but, once a lease is refused to the holder of such an authority, there would seem to be no justification for treating the authority as a bar to mining by the owner of the property.

[11]

This case is a further chapter in the long story of a dispute between the parties and of contests in the courts - mining wardens' courts, the Supreme Court of New South Wales on several occasions, and this Court. The question throughout has been as to the right to mine for zircon, rutile and ilmenite on certain lands at Cudgeon near Murwillumbah in New South Wales. I do not think it necessary that I repeat the facts, which are sufficiently set out in the judgments of the Supreme Court and in the judgment to be delivered by my brother Owen. The question for us depends upon the effect of relevant provisions of the Mining Act, 1906 NSW, as amended. The Act has been very often amended since 1906 - amended in a tinkering, patchwork way, sometimes without much regard for fundamental legal concepts or propriety of legal language. Because of the steady flow of amendments, it is important to determine the precise date at which the state of the law to be applied is to be considered. The events out of which the case arises began in 1960. But it seems to me that the law to be applied on this appeal is that which governed the Supreme Court for the decision of the proceedings there. These began as three originating summonses dated respectively 20th June, 24th June and 30th June 1966, the present appellant being the plaintiff and the present respondents the defendants in each. The matters were consolidated and heard together by the Chief Judge in Equity, McLelland J. [1] . His Honour on 11th August 1966 dismissed the three suits. From that decision the plaintiff appealed to the Court of Appeal Division of the Supreme Court. That Court (Herron C.J., Sugerman J.A., Walsh J.A.) unanimously, but by separate judgments, dismissed the appeal on 5th December 1967 [2] . From that decision this appeal comes to this Court by special leave. In my opinion we must determine it according to the state of the law applicable to it on 5th December 1967. That excludes from consideration the 1967 amendment of the Mining Act. Except for the express provisions made in s. 1 (5) - which give a retrospective operation to certain amendments of s. 70C of the principal Act, not material for this case - the 1967 amending Act seems to have no retrospective operation. It was not assented to until 7th December 1967, two days after the Supreme Court judgment now under appeal was given; and (except for s. 10) it did not commence until it was proclaimed. Still less can we have regard to the 1969 amending Act. It was not assented to until 2nd April last to commence thereafter on a date proclaimed. Therefore when in this judgment I refer to the Mining Act, 1906, as amended, sometimes calling it "the present Act", I shall, unless the context otherwise requires, mean the Act as it stood before 1967, that is the form in which it had to be applied in the Supreme Court in considering the consequences of the events from which the case arose.

[15]

It is always necessary in dealing with any law that alters the common law, and especially where the common law rights of the liberty of the subject or relating to property are concerned, to consider what was the previous law, and what were the apparent reasons for the alterations made: Nolan v. Clifford [1] . It is really needless to cite other passages to the same effect; but perhaps two will bear quotation once again. One is what Romilly M.R. said in Minet v. Leman [2] : the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched This principle of construction, as a general proposition, cannot be disputed. The other is the passage from Maxwell on Statutes quoted by O'Connor J. in Potter v. Minahan [3] , noting especially the reference to what Marshall C.J. said in the Supreme Court of the United States in 1805: Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects: United States v. Fisher [4] . The Mining Act, 1906, as it now stands, must of course be read and construed as a whole, but it was a consolidating Act, and the separate and different ancestries of its parts throw light on the matters with which this case is concerned - the relation of the Act to the proprietary rights of landowners in their own land and minerals there which they own. I have found it helpful in reaching a decision in this case to trace the history of the mining law. For this reason I shall set it out in broad outline. 1. (1904) 1 C.L.R. 429, at p. 444. 2. (1855) 20 Beav. 269, at p. 278 [52 E.R. 606, at p. 610]. 3. (1908) 7 C.L.R. 277, at p. 304. 4. (1804) 2 Cranch 358, at p. 390 [2 Law. Ed. 304, at p. 315].

[31]

The rights and liberties which an authority to enter now gives, and the obligations it creates, are to be found in ss. 50-56 in Pt IV of the present Act. These sections reproduce in substance, but with some alterations, the provisions of the Act of 1896. In law today an authority to enter given under Pt IV of the Act (excepting Div. 4A) confers a right to go upon land there to prospect for whatever minerals are mentioned in the authority. The authority of itself confers no estate or interest in land, and no right in any minerals there except to take samples for testing. It is not transferable: see Gander v. Murray [1] , per Isaacs J. The original purpose of an authority to enter was simply to enable the holder to go upon private land without becoming a trespasser there; and there to search for Crown minerals, with a view, if the search were successful, to making an application to the Crown for a mining lease. But, as having an authority to enter is a statutory condition precedent to an application for a mining lease of private land, an applicant for a lease who is a stranger to the land must have one, even if he does not need to avail himself of it having learnt of minerals on the land without himself actually going there. A landowner, or the lawful occupier of any private land, who himself desires to obtain a lease to mine Crown minerals on his land (subject of course to payment of royalty) needs no authority to enter upon the land as a preliminary to applying for a mining lease: see s. 25 of the 1894 Act, and now s. 68 of the present Act (noting that this section was greatly amended this year, 1969). A landowner obviously needs no permission from anyone to go anywhere upon his own land. But if he wishes to conduct prospecting operations there for Crown minerals he must first obtain an authority to enter. The term, authority to enter, may seem inapt in this case: but an authority to enter under the Act is not to be understood as simply enabling what would otherwise be a trespass on a private landowner's proprietary rights in the surface of his land. It also authorizes a disturbance of the property of the Crown by prospecting operations for its minerals on the land; and that could be done by prospecting operations by the landowner just as by anyone else.

[55]

Section 70BA, which was added to the Act by the amending Act of 1963, was referred to. It was said, relying on an implication in the section, that a landowner can himself obtain a mining lease from the Crown in respect of his own land and his own minerals there; and it was therefore suggested that, unless he had such a lease, he could not prevent the grant of a lease to the holder of an authority to enter. It is noteworthy that s. 70BA has recently, 1969, been extensively amended. That does not affect any conclusion which properly emerged from it as it was when this case began. I do not think that it then supported the appellant's argument. Its terms seem to me to have been, and still to be, a bungle. It contemplates the Crown purporting to dispose of property it has already disposed of. That is the same anomaly as is involved in a "lease for mining purposes", which I have already mentioned. But here anomaly is multiplied: not only does the section contemplate the Crown disposing, by mining lease, of what it has already disposed of by grant: it contemplates a disposition, in form, to the same disponee. I leave out of account the words which were in sub-s. (1), "applied for or held or occupied for prospecting, mining or mining purposes". I am inclined to think they must refer to licenses to prospect, mining leases or leases for mining purposes, and not to authorities to enter. Whatever they mean, the section was and is odd, to say the least of it. It seems to have been moulded upon s. 68; but, as I have said, that section is obviously designed to enable a landowner to obtain a right to mine for minerals in his land which belong, not to him, but to the Crown. It ensures that he is not because he is a landowner to be in a worse position than are strangers in regard to mining Crown minerals on his land. He can obtain a mining lease in respect of such minerals there. But whoever, until 1963, heard of a landowner becoming a lessee of his own land and his own minerals? Who would be his lessor? It is said that pursuant to s. 70BC the lease would be granted by the Governor in the name and on behalf of Her Majesty. But, if a subject of the Crown holds land and minerals therein as a tenant in fee simple of the Crown, I do not see how Her Majesty can grant a lease to him of the very lands and minerals so held. In such a case a document, in accordance with sched. 43D to the Regulations, purporting to be a grant and demise by the Queen may look impressive. To me the language in such a case is graceless futility. It cannot be saved by regarding s. 70BA as elliptically operating as an implied exercise of the Crown's rights of eminent domain by a resumption of minerals which had been granted to the landowner. The only way in which, so far as I can see, the section can be given a meaning is by disregarding its actual words and treating it as enabling the Crown to confer upon a landowner wishing to mine his own minerals all the rights which the holder of a mining lease has under the Act and to subject him to similar obligations. The section is perhaps to be treated as a clumsy expedient to produce this assimilation. In other words, the landowner can be put into the same position as a lessee for the purposes of the Act. This could no doubt be advantageous to him in some circumstances: for example if his land contained not only minerals owned by him but associated with them gold or other minerals reserved to the Crown, and perhaps if he desired to dispose of his rights to mine his minerals while retaining his ownership of the surface of the land. However, it is unnecessary to speculate about this. It is not necessary that a landowner should have a mining lease to enable him to dig his own land and take from it anything that is his, be it sand, roots, rutile or potatoes. Whatever be the effect of s. 70BA, it does not I think curtail, nor so far as I have seen is there anywhere in the Act anything which curtails, this common law right of a landowner, or which detracts from the natural meaning of s. 70D which recognizes it.

[59]

On 2nd November 1960 the appellant applied for an authority to enter the land to search for zircon, rutile and ilmenite and, on 9th August 1965, mining operations on the land were begun by the company under the agreements made by it with the landowners in November 1962. On the same day, 9th August 1965, an inquiry under s. 51 of the Mining Act into the appellant's application for authority to enter was commenced by the mining warden and, on 13th August following, he refused to grant the application. Litigation in the Supreme Court and in this Court followed and in the result a writ of mandamus was, on 20th May 1966, directed to be issued to the warden requiring him to hear and determine the application for authority to enter according to law. It is, I think, unnecessary to set out the reasons for this decision. It is sufficient to say that it was held that in certain respects the warden had misconstrued and misapplied certain provisions of the Act relating to the grant of authorities to enter private lands and search for minerals not reserved to the Crown. Following the mandamus proceedings the warden, on 17th June 1966, resumed the inquiry and, on 20th June 1966, the appellant instituted the first of the three suits which were later consolidated. At that date whatever right, if any, the appellant had to prevent the respondents from mining for minerals of which the landowners were the owners lay in the fact that he had applied for an authority to enter the land to prospect for the minerals which were being mined by or with the concurrence of the respondent landowners. On 24th June 1966 the warden granted the appellant authority to enter the land and, on 27th June 1966, the latter instituted the second of the three consolidated suits and later on the same day applied for mining leases of the land. His right, if any, to the injunction then sought was based upon the fact that he had been granted an authority to enter. In fact he did not, at any time, enter and search for minerals under that authority to enter, no doubt because he already knew of the existence of the minerals in the land and that they were being extracted in substantial quantities by the respondent company under its agreements with the other respondents. On 30th June 1966 the appellant lodged further applications for leases of the same land for the reason, I gather, that it was thought that the earlier applications might, for technical reasons, be regarded as ineffective.

[64]

In the Supreme Court the submissions for the appellant turned upon the words "at the time when the application is made" in the subsection. It was contended that they refer only to the time when an application for authority to enter is made and that if, at that time, no bona fide mining operations are being carried on by or with the concurrence of the owner - and that is the case here - the section presents no bar to the grant of a mining lease pursuant to an application made by the holder of the authority to enter. This argument was rejected by all the members of the Supreme Court who dealt with the case. Their Honours pointed out that the purpose of the subsection was to afford some protection to a landowner who was mining on his own land for minerals not reserved to the Crown. They held that on its true construction no authority to enter could be granted if, at the time when the application for it was made, the owner or some other person with his concurrence was carrying on bona fide mining operations and that if, after the grant of an authority to enter, the owner or some other person with his concurrence began to carry on such operations, and was carrying them on at the time when an application for a lease was made by the holder of the authority to enter, a lease could not be granted. In other words, their Honours read the words "at the time when the application is made" as meaning "at the time when the application for an authority to enter or for a lease, as the case may be, is made". On the appeal to this Court the same submission was made and a second contention was raised which does not appear to have been put before the Supreme Court. This was based upon the words "in or upon which bona fide mining operations are being carried on by or with the concurrence of the owner". In support of this second contention it was said that the rights which the Act confers upon the holder of an authority to enter, and particularly on one who has applied for a lease, are inconsistent with the notion that the owner of the land to which the authority relates or some person with his concurrence may, while the authority exists, mine the land for minerals not reserved to the Crown and that the Act must therefore be taken by implication, although not by express words, to forbid the owner to exercise, as against the holder of the authority to enter, what would otherwise be his common law rights. Accordingly it was submitted that at no time during the existence of the appellant's authority to enter could it properly be said that bona fide mining operations were being carried on by or with the concurrence of the owner. Although this argument was not directed to the submission that the words "at the time when the application is made" relate only to the time when the application for an authority to enter is made, the provisions of the Act to which counsel for the appellant directed our attention in support of what I have called the second contention are, I think, relevant in considering whether the construction placed by the Supreme Court upon s. 70D (1) was correct.

[66]

It seems to me that the proper approach to the case is to begin with the fact that the owner of land has, at common law, a right to mine his own land for his own minerals and to regard s. 70D (1) as being designed to afford some protection to that right and to ensure that neither an application for authority to enter nor a lease shall be granted if the owner or some person with his concurrence is carrying on bona fide mining operations on the land for unreserved minerals at the time when the application for an authority to enter or for the lease, as the case may be, is made. In such cases the general policy of encouraging mining on private lands for unreserved minerals is being carried into effect by the activities of the owner of the land and of the minerals in it. This is the way in which I read the subsection and accordingly I agree, with respect, with the construction placed upon it in the Supreme Court. I agree also with their Honours' view that there is not to be found elsewhere in the Act sufficient to justify the conclusion that the terms of the subsection are not to be given what, on their face, appears to be their ordinary meaning but are to be read in the limited fashion for which the appellant contends. And if that is the true construction of s. 70D (1), the subsection itself provides an answer to the argument based upon the words "in or upon which bona fide mining operations are being carried on by or with the concurrence of the owner" since it contemplates that mining operations, by or with the concurrence of the owner, commenced after the grant of an authority to enter and being carried on at the time when an application for a lease is made by the authority holder, are within the words "bona fide mining operations". Finally I would add that I find it difficult to see why whatever inconsistencies there may appear to be between s. 70D (1) and the other provisions which deal with the rights of the holder of an authority to enter private lands should be reconciled by reading down the protection given by the subsection so as to fit in with those other provisions rather than by reading those other provisions in such a way as to fit in with the subsection.

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Judgment (66 paragraphs)

Parties