APPLICATION BY HALLET BRICK PTY LTD

[2016] SAWC 3

Wardens Court of South Australia

(District Court Administrative and Disciplinary Division)

APPLICATION BY HALLET BRICK PTY LTD

[2016] SAWC 3

Judgment of Senior Warden Dr Cannon (ex tempore)

19 April 2016

ENERGY AND RESOURCES - MINERALS - COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS - SOUTH AUSTRALIA - WARDEN'S COURT

Revocation of Private Mines

APPLICATION BY HALLET BRICK PTY LTD
[2016] SAWC 3

1. In the mid 1880’s the argument over who owned mineral rights was resolved and all subsequent grants of freehold titles excluded mining rights.  Prior to that permission to mine had to be obtained from the freehold owner.  So it was that the first commercial mine in Australia, the Glen Osmond mine, was mined with the permission of the owner of the freehold. 

2. After the mid 1880’s all other grants of freehold excluded mineral rights but there had been substantial grants of freehold title prior to that.  When the Mining Act 1971 came into force it resumed to the Crown all those mining rights that had previously, prior to the mid 80’s, been granted to landowners.  So it was then that the Crown had decided in its executive government to manage the granting of the right to mine, the management of mineral processes and of course taking benefits to the community rather than individual land owners for the minerals extracted. 

3. To protect itself against a large claim for the loss of rights from people whose mining rights had been taken back to the Crown it created the notion of private mines so that people who maintained the intention to exploit their private mining rights were entitled to do so outside the operation of the Mining Act 1971 and that has continued until this day.  Most of the private mines have now been brought to an end.  Many were never exploited, just held onto in case there was some value to them and then let go when it was realised there was not.  Some have been very valuable and have been mined extensively, particularly in the extractive minerals area. 

4. The Wardens Court has a role in declaring that mines should be varied or revoked.  Section 73M of the Act sets out that the Wardens Court may on application of the Director of Mines or the proprietor of a private mine declare that proper grounds exist for the variation or revocation of the area as a private mine under the Act.  Proper grounds exist for the purposes of sub-section (1) in the case of an application by the proprietor if the Wardens Court is satisfied that if in the circumstances of the particular case it is appropriate that a declaration be made.  Prior to proceeding the court needs to pay attention to whether people who have a relevant interest have been advised.  Under this Section and also its predecessor this Court has always had the view that where someone has exploited the resource for private purposes before abandoning their mining rights they should be held to the responsibility to rehabilitate the land into a safe and environmentally satisfactory state.  If this court did not pay attention to that there is a real risk that private mines would be abandoned, leaving a large cost for rehabilitation for the community to bear when all the benefit from the mining has gone to the private operator, not the community, subject of course to some royalty arrangements in the Act.  So it is that this court has always wanted to be satisfied that proper rehabilitation is in place. 

5. In the particular instance before me this resource has been extensively mined.  The title details are set out in attachment 3 of the very helpful report from the Department of State Development and I notionally include those title descriptions in attachment 3 into these brief reasons.  The applicant was the former operator of the land of Private Mine 68 which was owned by Christies Stone Quarries Pty Ltd ACN007579704.  Christies sold the majority of the land to Land SA in June 2002.  It remained the holder of the private mine.  Land SA and the property developer and now proprietor MSP Property Holdings Pty Ltd have no interest in the private mine.  The only parties with an interest in this area are the applicant, Land SA, and MSP Property Holdings Pty Ltd and all of them are aware of this application.  They all support this application.

6. Some half a million plus tonnes of resource was removed from this mine but operation ceased in 1996.  There is nothing so special in the nature of the resource to have any implications for the resources of the State by removing this private mine and indeed the resource has been exhausted.  Part of the land has been used for waste disposal since 1985 in accordance with an Environmental Impact Statement.  It is subject to a post closure management plan as set out by the advisors BC Tonkin and Associates.  That will be monitored until 2021.  There is a mortgage in place to ensure compliance with the process of rehabilitation.  A portion of the land is being used for motorbike safety training.  Landfill gas is being extracted from the landfill area and the rest is revegetated.  In those circumstances I am satisfied that the owner of the private mine has acted appropriately, has in place appropriate machinery to ensure rehabilitation and has taken reasonable steps to make sure that the rehabilitation plan will be carried out.  In those circumstances I find that proper ground exists for the complete revocation of this private mine and I prepare a recommendation to the Governor accordingly.