Borthwick v Australian Graphite P/L
[2015] SAWC 1
•8 September 2015
Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
BORTHWICK & ORS v AUSTRALIAN GRAPHITE P/L
[2015] SAWC 1
Judgment of Senior Warden Dr Cannon
8 September 2015
ENERGY AND RESOURCES - MINERALS - COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS - SOUTH AUSTRALIA - WARDEN'S COURT
Mining Act 1971 s 6, 9, 20, 28, 57, 58, 58A, 67, referred to.
B. Selge Nominees Pty Ltd v Colin Wegener (July 2000) SA Warden's Court Reports; Southern Titanium NL v Heidrich and others (April 2005) SAWC; Alton, Fowler and Teusner v Maximus Resources NL (No.1) [2009] SAWC 14 (4 July 2008), applied.
Taylor v St Helens Corporation (1877) 6 Ch D 264 at 272, 273 CA; Pwesey Vale Pty Ltd v Adelaide Brighton Cement [2009] SAWC 8, discussed.
Mostyn v Atherton (1899) 2 CH 360; Knezovic v Shire of Swan-Guildford [1968] HCA 38, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Spring
Cultivated land
Exempt land jurisdiction of the Court"
BORTHWICK & ORS v AUSTRALIAN GRAPHITE P/L
[2015] SAWC 1
Mr Christiano Ernest De Jesus Borthwick (called Chris Borthwick) is the registered proprietor of the whole of the land contained in section 125 in the hundred Koppio being the whole of the land in Certificate of Title Register Book Volume 5619 Folio 639. Mr Adam Ernest Borthwick (called Adam Borthwick), his father, used to own the land and now claims an interest as lessee under an unregistered lease dated 1 July 2009 granting him a little less than a 15 year term until “31st day of February 2024 ” over the arable portions of land owned by Chris Borthwick for the purpose of growing a cereal crop. Ms Emie Louise Borthwick (called Emie Borthwick) is Chris Borthick’s cousin and claims an interest under an unregistered lease dated 1 July 2009 granting her a 15 year term over the non-arable portions of land owned by Chris for the purpose of harvesting native and indigenous vegetation seed (‘Brownbagging’). As a group I describe the three plaintors as the Borthwicks.
Australian Graphite Pty Ltd (AGL) is the proposed mining operator. AGL proposes to establish a significant graphite mine mostly on land adjoining Chris Borthwick’s land but with a portion of the pit intruding onto his land. It served Notices of Entry on Chris Borthwick on 21 August 2014, on Adam Borthwick on 9 September 2014 and on Emie Borthwick on 9 September 2014. There was an earlier unsigned notice of entry served on Chris Borthwick in May 2014. AGL are not relying on that notice.
The procedural history
In cause no 14-1488 received on 11 September 2014 Chris Borthwick filed a plaint objecting to entry on several grounds. On 16 September I made an ex parte order forbidding entry and listed it for a directions hearing on 23 September. On 23 September Mr Olekalns appeared for AGL and advised that entry was only sought to conduct a survey to peg a claim. I adjourned the matter to 30 September to allow Chris Borthwick to take advice on that. On 30 September I gave permission to AGL to enter on Chris Borthwick’s land solely for the purpose of undertaking a survey sufficient to peg a claim between 3-12 October 2014.
In cause no 14-1582 received on 29 September 2014 Emie Borthwick filed a plaint objecting to entry on similar grounds to those in 14-1488 with additional grounds challenging the authority of AGL to give notice in view of the Exploration Licence that exists over the area and because the signature on the Notice of Entry was not authenticated. In cause no 14-1587 received on 30 September Adam Borthwick filed a plaint objecting to entry on similar, but not identical grounds. I listed both those matters on 3 October 2014 and confirmed the limited permission of entry, preserved the landowners’ rights and granted liberty to apply. Those orders were made because notice of entry is required in order to peg a mineral claim. It is clear from the definition in s 6 of the Act that pegging a claim is a mining operation and the reservation at the end of s 9(1) permitting pegging on exempt land is necessary because pegging is a mining operation. AGL entered, pegged, and registered Mineral Claim registered number 4372 (MC4372).
Further notices of entry in relation to applying for a Mining Lease for graphite were served on the Borthwicks on about 25 February 2015. In cause no. 15-340 received on 16 March 2015 Emie Borthwick filed a fresh plaint objecting to entry on several grounds including some of those in the earlier plaints. This was closely followed on 18 March 2015 by plaints in similar terms filed by Chris Borthwick (15-358) and Adam Borthwick (15-359). I listed these for a directions hearing on 24 March 2015 and noted that the plaints separately raised arguments about the validity of the original Notice of Entry and hence the validity of the MC4372 and also expressed a willingness to negotiate. I adjourned those plaints to 21 April 2015. In later listings I have also included the three plaints from 2014 and all other associated matters.
By a letter of 15 April 2015 the Crown Solicitor advised the Mining Registrar would decline a request from Emie Borthwick that the Mining Registrar attend the proposed conciliation conference.
On 21 April I listed a conciliation conference on 9-10 June at Tumby Bay and adjourned other issues to 28 April, noting that a contest over the validity of MC4372 would be heard by a different Warden. On 28 April I gave permission to Brian Ray March to appear in Adelaide for Adam Borthwick in view of his limited hearing capability making phone hearings difficult for him to follow. Adam Borthwick’s letter of 22 April and a letter from Brian March of 23 April are on the court file. I also gave AGL the right to enter to conduct a flora and fauna survey and to identify any springs. The access was limited to four persons and one day only duration. I confirmed the conciliation conference arrangments and referred the issue of the validity of the Notice of Entry and the pegging of MC4372 to Warden Fahey to determine. On plaint numbers DCCIV 14-1488, 14-1587 and 14-1582, Warden Fahey on 24 June 205 found that AGL served Notices of Entry on Christiano Borthwick on 21 August 2014 and on Adam Borthwick and Emie Borthwick on 9 September 2014 and they were valid. Under those I gave permission to peg the claim. The pegging of MC4372 is valid.
Meanwhile I adjourned the matters to a directions hearing on 2 June to confirm the arrangements for the conciliation conference.
On 2 June I was advised that despite my order that entry be permitted for the limited and non intrusive purposes of conducting a flora and fauna survey, entry did not occur for the reason that crops had been sprayed and it was not safe to enter. I confirmed the arrangements for the conciliation conference on 9-10 June to commence at the Tumby Bay RSL hall. On 4 June I gave directions about the conduct of the conference. On 5 June the court received a letter from Mr Michael Coates seeking an adjournment of the conciliation conference because Emie Borthwick had been admitted to the Tumby Bay hospital with respiratory issues. This was supported by a medical certificate under the hand of Dr Sara Georg. I ordered that the visit would continue but the purpose would now be to conduct a view. On 9 June we met with Chris Borthwick, an experienced local driller Mr Mattsson, and representatives of AGL at the Tumby Bay RSL and then conducted a view of the proposed mine site and the part of Chris Borthwick’s property in MC4372. In view of the ill health of Emie Borthwick conciliation did not occur.
On 15 June 2015 McDonald Steed McGrath Lawyers gave notice of acting for Chris Borthwick and by interlocutory application sought that this court determine the status of exempt land be determined as a matter of priority and that the conciliation conference be deferred and the limited permission for entry of 28 April be stayed. On 16 June I noted an undertaking that AGL would not further enter without prior notice. The parties agreed that the Wardens Court has jurisdiction to determine what is exempt land and I reserved trial dates at Port Lincoln on 27-28 July to determine what springs exist on the land and the extent of cultivated land for the purposes of the Act. I directed the parties to file and serve a short statement of their respective positions and adjourned the matters to 24 June for further directions.
On 24 June I gave leave to the lawyers for the Borthwicks to cease to act. The Borthwicks identified a new expert Dr Vic Semeniuk who would be available to conduct an on site inspection on 4-5 July and to give evidence on 10-11 August. I adjourned the matter to the next day and asked the Borthwicks to confirm that if Dr Semeniuk “is doing an inspection on 4th and 5th July and that Mr Howe, the expert for the mining company, can be present and have a broad ranging discussion with him on site. The Borthwicks and Dr Semeniuk will facilitate that so that the two experts can identify areas of agreement and disagreement to make their evidence easier.”
On 25 June I vacated the trial date and reappointed a trial date on 10-11 August at Port Lincoln. I ordered that there would be a site visit by the experts on 5 July at which, as I had noted in the order of 24 June, AGL’s expert Mr Howe was to be entitled to enter the area and the experts were to confer. I ordered that they file a statement of their findings and opinions on matters about which they do not agree. I adjourned for further directions on 4 August.
On 29 June the court received an application from the Borthwicks requesting (amongst other things) an order that access not be permitted on exempt land for hydrological assessment and that “there is no benefit in holding a trial to determine exempt land before there is a Notice of Entry upon which an argument upon the existence of exempt land exists.”
I listed this for hearing on 2 July and confirmed the order I had made on 25 June. I expressed a view:
“Frankly I think that the application suggests that the Borthwicks are being less than cooperative in bringing this matter to an appropriate fair resolution. That is a matter that I will have to finally determine when I hear the trial in Port Lincoln, having the benefit of the reports from the hydrological experts who will have been able to inspect it in accordance with the order made on 25 June.
I order that the land owner permit Mr Howe to access the land on 5 July 2015 at 11.30 a.m. and he can remain there for the purpose of inspecting hydrological sites until 5 p.m..”
AGL raised the issue of legal costs and I reserved their position. At the directions hearing on 4 August Mr James was concerned to hear that Dr Semeniuk had been on site prior to 3 p.m. because it was said he was not available to be there before that time which delayed the possibility of when Mr Howe could be there. As he anticipated that was an issue that he raised at trial because in fact Dr Semeniuk inspected the property in the morning of 5 July and returned at 3 p.m. to meet Mr Howe for a joint view.
For procedural completeness I regard the three original plaints objecting to the first Notice of Entry (DCCIV 14-1488, 14-1587 and 14-1582) and the three later plaints objecting to the second Notice of Entry (DCCIV 15-358, 15-359 and 15-340) as different aspects of a continuing case. I shall deliver this judgment on all six files. As a result of the extensive documentation filed by the plaintors on each file in total the files are too large to conveniently handle. From now on I shall list only DCCIV 15-340, 15-358 and 15-359 on the clear basis that the applications and material on the earlier files remains available for ongoing issues that may arise.
The issues decided in this trial
I am now deciding another issue that has arisen in this matter: the extent of exempt land in MC4372. The Borthwicks bear the onus of establishing the facts upon which an exemption arises. The evidence must show that on the evidence the facts are proven to be more likely than not, that is to say they bear the onus of proof upon the balance of probabilities. Ms Emie Borthwick conducted the case for the Borthwicks, Chris Borthwick was present throughout the hearing and Adam Borthwick was present for most of the hearing. Mr March, who has had previous leave to appear in Adelaide on behalf of Adam Borthwick in view of his limited hearing capacity, was present at the bar table throughout the trial. Mr James, instructed by Mr Olekalns appeared for AGL.
An exemption may arise to the benefit of the Borthwicks in two ways that are in contention:
·By cultivation of the land
·By the land being within 150 metres of a spring.
I note other exemptions arise for the benefit of one or more of the Borthwicks in respect of dams and also for the benefit of a neighbour in respect of a dwelling house but they are not in dispute before me.
I heard sworn evidence from Emie Borthwick, Chris Borthwick and Dr Vic Semeniuk, an expert for the Borthwicks, and Mr Paul Howe an expert for AGL. The exhibits listed at the end of the judgment were tendered. I thank the parties for the efficient approach to the hearing.
Jurisdiction
The parties have agreed that the Warden’s Court has jurisdiction to hear and determine the issue of what land is exempt. However jurisdiction cannot necessarily be conferred by consent. I rule that I do have jurisdiction to determine what is land is exempt. Section 67 of the Mining Act 1971 (the Act) confers the general jurisdiction of the Warden’s Court.
67—Jurisdiction relating to tenements and monetary claims
(1)The Warden's Court shall have jurisdiction to determine, in such manner as may be just, all actions concerning any right claimed in, under, or in relation to, any mining tenement or purported mining tenement.
The Warden’s Court has specific jurisdictions under the Act, other Acts and the Regulations. A relevant example is the entry on land.
57—Entry on land
Subject to this Part, a person authorised to prospect, explore or mine for minerals under this Act—
(a)may enter any mineral land (except exempt land) for the purpose of prospecting, exploring or mining for minerals in accordance with the authorisation; and
(b)may enter exempt land for the purpose of pegging out or otherwise identifying a claim.
I mention that the general authority to prospect is granted by s 20 of the Act, to explore by s 28, and to mine in various sections. These authorities are not to be confused with the authority to enter land which is dealt with under the next section.
58—How entry on land may be authorised
A mining operator may enter land to carry out mining operations on the land—
(a)if the mining operator has an agreement1 with the owner of the land authorising the mining operator to enter the land to carry out mining operations on the land; or
…
(c)if—
(i)the mining operator has given the prescribed notice of entry; and
(ii)the mining operations will not affect native title in the land; and
(iii)the mining operator complies with any determination made on objection to entry on the land, or the use or unconditional use of the land, or portion of the land, for mining operations;2 or
…
Explanatory note—
A mining operator's right to enter land to carry out mining operations on the land is contingent on the operator holding the relevant mining tenement.
Notes—
1If the land is native title land, the agreement is to be negotiated under Part 9B.
2See section 58A(5).
The owner of the land has a right to object to the mining operator entering her or his land.
58A—Notice of entry
(1)A mining operator must, at least 21 days before first entering land to carry out mining operations, serve on the owner of the land notice of intention to enter the land (the prescribed notice of entry) describing the nature of the operations to be carried out on the land.
(2)The notice must be served—
(a)in the case of native title land—as prescribed by the Native Title (South Australia) Act 1994; or
(b)in other cases—personally or by post.
…
(3)If the land is held under a form of title (other than a pastoral lease or a licence under the Petroleum and Geothermal Energy Act 2000) that confers a right to exclusive possession of the land—
(a)the notice must contain a statement of the owner's rights of objection and compensation under this Act; and
(b)the owner may, within three months after service of the notice, lodge a notice of objection with the appropriate court objecting—
(i)to entry on the land by the mining operator; or
(ii)to the use, or the unconditional use, of the land, or a portion of the land, for mining operations.
(4)The court must send a copy of a notice of objection received under subsection (3) to the mining operator.
(5)If the court is satisfied on the hearing of an objection that the conduct of the mining operations on the land would be likely to result in substantial hardship or substantial damage to the land, the court may—
(a)determine that the land, or a particular part of the land, should not be used by the mining operator for the purpose of mining operations; or
(b)determine conditions on which operations may be carried out on the land by the mining operator with least detriment to the interests of the owner and least damage to the land.
There are similar provisions in relation to the use of declared equipment. Compensation for economic loss, hardship and inconvenience can be awarded to landowners (s 61). Interestingly the power to award an additional component to cover reasonable costs in s 61(2a) seems to be limited to miners who are licence holders.
Mineral claims can be pegged or otherwise obtained over areas including exempt land within their boundaries, as is the case here. To exercise these jurisdictions the Warden’s Court must necessarily be able to determine which parts of the land in respect of which an objection to entry has been raised may not be affected because it is exempt from a mining operation. The Court can determine which parts of the tenement are exempt by exercising its general jurisdiction under s 67 to determine “all actions concerning any right claimed in, under, or in relation to, any mining tenement or purported mining tenement.” If there remains any doubt about this the Minister might consider an explicit conferral of this jurisdiction by regulation made under s 67(2).
The standing of the parties
It is the owner of the land who has a right to object to entry (s 58A(3)(b)). It is the owner of the land on which the relevant exempt item (cultivated field, dam, spring, building, etc) is situated who has benefit of the exemption for the purposes of the Act (s 9(3b)). The definition of owner in s 6 provides:
owner of land means—
(a)a person who holds a registered estate or interest in the land conferring a right to immediate possession of the land; or
(b)a person who holds native title in the land; or
(c)a person who has, by statute, the care, control or management of the land; or
(d)a person who is lawfully in occupation of the land;
In the interests of fairness to unrepresented parties I have proceeded on the basis that each of the Borthwicks have a legal entitlement to be heard on this matter. Chris Borthwick as the registered proprietor definitely does. I have not heard argument as to whether the unregistered leases giving non-exclusive access rights to Emie Borthwick and Adam Borthwick for terms in excess of five years over portion only of land in a certificate of title are valid and effective to give them an interest which is protected by the Act. This judgment does not imply a finding that they are so entitled.
AGL has a right of appearance.
I note the helpful submission on definitions of a cultivated field and springs from the Director of Mines who did not otherwise appear.
The purpose of the Mining Act 1971
I have commented on the purpose of the Act in earlier cases and I repeat those remarks. Since 1889 all grants of freehold title in South Australia have reserved the mineral rights to the Crown so that the State can manage the mineral rights for the benefit of the whole community rather than the individual freehold landowners having the benefit of those rights. The rights to minerals granted to landowners prior to 1889 were taken back by the Crown by the Act in 1971. The intention of the Act is to encourage mining. This is clear from the Second Reading speeches and debates in both the House of Assembly and Legislative Council on the passage of the Bill that became the Act[1].
[1] Parliamentary Debates South Australia 1971-72, Vol.1-3, 40th Parliament, 2nd session.
In the Second Reading Speech in the House of Assembly, The Hon. G.R. Broomhill said[2]:
(presently there is), “an anomalous situation in which by historical accident some freehold land (probably as much as half) is mineral land and the opportunity for mineral discovery is available on it, whereas other freehold land is subject to procedures that are inhibiting and unsatisfactory.”
[2] Ibid. Vol.1, p.490
In the Second Reading Speech in the Legislative Council, The Hon. A.F. Kneebone (Minister of Lands) said[3]:
“It is the policy in all industrialised countries to encourage exploration and mining by providing access to potentially mineralised areas notwithstanding the surface rights thereto.”
“The proposal has the effect of placing all freehold land throughout the State on an equal footing regardless of historical mineral ownership.”
“The proposal will enable the Crown to grant mineral exploration rights over areas of land with are presently excluded from effective investigation.”
[3] Ibid. Vol.2, p.2159
The Act makes provision for the compensation of landowners and environmental concerns. The Hon. A.F. Kneebone said[4]:
“it is also considered that the transition and compensation arrangements are equitable to all concerned.”
“The Bill goes to great lengths to ensure that the current climate in the community regarding the conservation of the environment is fully accommodated in respect of mining.”
“A mining lease requires the payment of rent to the owner of the land, requires the payment of royalty, and is subject to such conditions as may be appropriate and specified in the lease in respect of damage to the land, restoration, compensation etc.”
[4] Ibid. Vol.2, p.2159-2161
When the Act was updated by the Mining (Miscellaneous) Amendment Bill 2010 the Hon. P. Holloway (Minister for Mineral Resources Development et al) in the second reading speech in the Legislative Council said[5]:
“South Australia possesses a wealth of mineral resources. These are owned by the people of South Australia and need to be managed in the community’s best interests. The Government of South Australia is committed to the principles of effective and efficient regulation of our mineral resources sector. The Government is also seeking to develop our mineral resources within the framework of South Australia’s Strategic Plan – Key Objective 1: Growing Prosperity which sets targets for mineral resource exploration, production and processing. Our Strategic Plan recognises the importance of our resources sector in growing the State’s future economic prosperity through increased business investment, regional development and opportunities for employment and skilling, balanced against key environmental and social objectives.” …
“The Government values the informed involvement of all stakeholders and strongly supports companies to achieve a social licence to explore and/or a social licence to operate.”
[5] Hansard 52nd Parliament, 1st session, Legislative Council 2010-05-11 15:40.
The interests of landowners are protected by the notice of entry provisions and the exemption of some land from mining. The Act provides that the competing rights of landowners and miners can be negotiated between themselves and if they cannot agree decided by the Warden’s Court, or in relation to exempt land now the ERD court. The Court can order conditions upon which mining must be conducted and order compensation, or refuse to permit mining to occur.
I have summarised the applicable law in several judgements.[6]
[6] B. Selge Nominees Pty Ltd v Colin Wegener (July 2000) Warden’s Court Reports SA p.3, Southern Titanium NL v Heidrich and others (April 2005) at page 6-15, and Alton, Fowler and Teusner v Maximus Resources NL (No.1) [2009] SAWC 14 (4 July 2008) at para 35.
Although this court no longer deals with the removal of exempt status the principles developed in those authorities is sound and remains relevant to objection to entry and the use of declared equipment. These cases involve the resolution of important competing rights. The landowners, usually pastoralists or farmers, often have multigenerational and sometimes emotional association with the land, as do the Borthwicks. They have an interest in preserving its productive capacity for the future, maximising their income and concerns for the environment and the amenity of where they live. Miners have an interest in extracting valuable resources to provide the raw materials on which our economy depends and their activities contribute employment and wealth both locally and to the whole community. The community has an interest in encouraging both agriculture and mining. The well being of our agricultural and pastoral lands, and clean water resources, are fundamental to life and of great economic importance to the State. In the financial year ending 30 June 2014 according to Department of State Development figures agricultural production at the farm gate contributed $4,376m to the State economy and gross food revenue was $15,338m.[7]
[7] >
If we pause to look at the things we depend upon in our daily lives, once we are fed and watered we can see that most of them came from a mine or an oil or gas well. Look around the room you are in and identify everything that had its source in a mine or an oil or gas well. We rely on mining for our buildings, consumer goods, transport and energy needs. If we want renewable energy sources the silicon, glass, aluminium and wires in solar panels and the material to construct electricity generating windmills all come from mines. Lithium-ion batteries for energy storage often use a graphite electrode. Farmers rely on fuel, fertiliser, chemicals and machinery which all have their origin in mines or oil and gas wells. In the financial year ending 30 June 2014 the total mining, petroleum and gas production contributed $7,510m to the State economy.[8]
[8] >
We must live sustainably, that is we should leave our environment in no worse and preferably in better condition for future generations. I commend Emie Borthwick for her work on sustainable farming practices. Earlier generations of both farmers, pastoralists and miners have sometimes done great environmental damage and sometimes still do. We are learning from those mistakes and making sure that both mining and farming are regulated to ensure that the environment is respected. Both mining and farming have risks and benefits. Miners have an obligation to earn a social licence to manage their potentially destructive activities in a sustainable way. The regulator has the primary role in managing the risks. The primary role of the Court is to ensure that the respective interests of miners and landowners are enabled and protected in a balanced way. Given the nature of these competing interests it is my view that they are best managed by a conciliation process. However, when that is not possible the Court will impose conditions and where appropriate, compensation. The comprehensive conditions often imposed by the Warden’s Court, for example 20 pages in length in Southern Titanium v Heidrich and others[9] are an example of how this court has protected the interests of landowners in proper balance with its obligation under the Act to encourage mining.
[9] Op. cit.
I bear those matters in mind when considering this case.
The existence of springs
I have heard evidence from Dr Vic Semeniuk for the Borthwicks and Mr Paul Howe for AGL. It is accepted by the parties and by me that they are qualified to give opinion evidence about hydrological issues and in particular what is a spring. Several places have been identified as springs by the plaintors. I understand these were originally identified by Mr Mattsson, an experienced driller. He has not given evidence. The 15 potential springs are marked on Exhibit P 7.
The first issue is the definition of a spring for the purpose of the Mining Act 1971. Section 9 of the Act provides that:
9—Exempt land
(1)Subject to this section—
(a)land that is lawfully and genuinely used—
(i)as a yard, garden, cultivated field, plantation, orchard or vineyard;
(ii)as an airfield, railway or tramway;
(iii)as the grounds of a church, chapel, school, hospital or institution; or
(b)land that constitutes any parklands or recreation grounds under the control of a council; or
(ba)land—
(i)that is dedicated or reserved, pursuant to statute, for the purpose of waterworks; or
(ii)that is vested in the Minister of Public Works for the purpose of waterworks; or
(iii)that is comprised within an easement in favour of the Minister of Public Works; or
(bb)land that constitutes a forest reserve under the Forestry Act 1950; or
(c)any separate parcel of land of less than 2 000 square metres within any city, town or township; or
(d)land that is situated—
(i)within 400 metres of a building or structure used as a place of residence (except a building or structure of a class excluded by regulation from the ambit of this paragraph); or
(ii)within 150 metres of—
(A)a building or structure, with a value of $200 or more, used for an industrial or commercial purpose; or
(B)a spring, well, reservoir or dam,
(but not if it is an improvement made for the purposes of mining operations),
shall be exempt from mining operations in pursuance of this Act and, unless the benefit of the exemption is waived under section 9AA, no claim, lease or licence shall authorise prospecting, exploring or mining upon such land (but this section does not prevent the pegging out of a claim upon such land).
(2)Where any land is subject to a claim, lease or licence under this Act and that land would, but for this subsection, be land exempt from mining operations in pursuance of this Act by reason only of a fact or circumstance occurring or arising subsequent to the pegging out, or granting, of the claim, lease or licence, that land shall not be exempt from operations in pursuance of this Act.
(3b)The following persons shall, for the purposes of this Act, be regarded as having the benefit of an exemption under this section (and, subject to an order of the ERD Court under section 9AA, each person who has the benefit of an exemption must be a party to an agreement to waive the benefit before the land can cease to be exempt land):
(a)the owner of the exempt land; and
(b)in the case of land that is exempt from mining operations under subsection (1)(d) by reason of its proximity to other land on which a building, structure, spring, well, reservoir or dam is situated—the owner of that other land.
(4)This section does not affect any provision of the Pastoral Land Management and Conservation Act 1989 prohibiting or restricting the conduct of mining operations on lands subject to that Act.
(5)In this section—
mining operations include any operations or activity for which a miscellaneous purposes licence may be granted.
The section protects some uses of land from mining activity. The protection is not absolute. It can be removed by agreement with the person who has the benefit of the exemption or by the ERD court (s9AA). This is not an environmental protection but a section to protect commercial and domestic and social uses over land. In that context the value of a spring lies in its value to the land owner as a source of water, as does a well, a reservoir, or a dam. Water in this dry land is essential to farming for the watering of stock and, where permitted by licence, for irrigation. ‘Spring’ is not separately defined in the Act but in context with wells, reservoirs and dams it must mean a water source which has value to the operations of the landowner.
The judicial authority on what constitutes a spring is surprisingly limited. There is none in the Warden’s Court. Springs have been identified in early English cases[10] and their existence was obvious. The earlier English authorities indeed make one of the attributes of a spring for legal purposes that it be obvious. In Words and Phrases Legally Defined (John B Saunders (ed), Butterworths, 1990) the following entry appears under spring:
‘Now what are springs and streams? A spring of water, both in law and ordinary language, is, as I understand it, a definite source of water. When we talk of a spring of water we mean of source of water of a definite or near definite area, the word “spring” coming from the water springing or bubbling up. It may be an underground spring which supplies a well, and we say that water “wells up”. It may be an ordinary spring from which a small stream or rivulet runs above the ground. But those are definite things. A spring of water means a natural source of water of a definite and well-marked extent’: Taylor v St Helens Corporation (1877) 6 Ch D 264 at 272, 273, CA, per Jessel MR.
[10] E.g. Alton, Fowler and Teusner v Maximus Resources NL (No.1), op. cit.
In Mostyn v Atherton (1899) 2 CH 360[11] in a case dealing with riparian rights the court said:
"The onus is on the party asserting his right to the flow to show affirmatively, not as a visible fact, but as a reasonable inference from known facts, that the water comes to the place of emergence, not by percolation or oozing, but in a known and defined channel."
[11] At p.363
I have been referred to Knezovic v Shire of Swan-Guildford and similar cases dealing with watercourses in Australia.[12] I note that they require a degree of definition before water runoff can be termed a watercourse even though the flow of water need not be permanent.
[12] [1968] HCA 38; (1968) 118 CLR 468, see also Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 and in South Austtralia Macag Holdings v Torrens Catchment Water Management Board No. SCGRG-99-1635 [2000] SASC 115.
The Macquarie Dictionary refers to a spring as “an issue of water from the earth, flowing away as a small stream or standing as a pool or small lake or the place of such an issue.” Mr Howe quotes the United Geological Survey “A body of water that formed when the side of a hill or valley intersects a flowing body of groundwater at or below the water table, below which the substrate is saturated with water.” The Australian National Water Commission says a spring is “A naturally occurring discharge of groundwater flowing out of the ground, often forming a small stream or pool of water. Typically it represents the point at which the water table intersects the ground level.” Dr Semeniuk at page 41 of his report (Exhibit P8) refers to the United States Geological Survey describing a spring as a discrete place where groundwater flows naturally from a rock or soil onto the land surface or into a body of water. He says that the V & C Semeniuk Research Group “defines a spring as a natural (corrected) discharge of groundwater from the subsurface to the surface manifest as flowing water, or a wet soil, or seepage. The spring can be perennial, or seasonal, or intermittent, depending on the rainfall patterns and climatic cycles.” I note the addition in his definition of wet soil and seepage.
Dr Semeniuk in figure 5 at page 40 of his report describes different ways that this can occur and Mr Howe agrees all are possible sources of ground water emerging at the surface. They agree that springs can be permanent, seasonal or ephemeral. However Mr Howe does not concede that they exist on this site. The difference between the two experts resolved mainly in whether the definition of spring should include wet soil or soaks and a different view of the presence and significance of the water table.
Dr Semeniuk says the geology of the area is very complex and so the idea of a stable water table across the area may be inaccurate. There are many aquifers in this area and some may be perched, as for example in item c in figure 3. He says there are three indicators of springs: water, shallow rooted hydrophilic vegetation and wetland soils. Diatoms need water for a significant period to breed. Their presence indicates that the ground was saturated with water for some time. They can survive through a substantial dry spell for some years. He took soil samples at the points noted in figure 8 and he indentified the presence of diatoms in Exhibit P 9 (produced only on the morning of trial). He also found vegetation such as Lepidospermum which can live in saturated soils, but acknowledged that it can tolerate drier soils. The conclusion from this evidence is that the soil at the points he identified has been saturated for significant periods over the previous decade. He also identified and photographed (figure 6) several holes or piping at a point between tags 3 and 5 in his figure 8 which is the same as Exhibit P7. These are likely to be caused by the erosion of water and indicate the flow of water from subsurface to the surface. I thought that Mr Howe’s explanation that these might have been caused by roots was a little unconvincing but it is a matter of regret that Dr Semeniuk did not point them out to Mr Howe at their joint inspection as it is difficult to draw firm conclusions from a photograph.
He refers to climate patterns and rainfall data in Perth to suggest that a dry period applies at the moment to the Pillaworta region and that explains why springs may not be running at the moment. I have better evidence of the recent rainfall patterns in the area. Exhibit R3 shows that the Bureau of Meteorology weather station at Tumby Bay is 18.2km approximately East, and the Koppio weather station is approximately 7.9km SSWest, of Chris Borthwick’s property. The Yallunda Flat weather station is approximately 5.8km North of the property. Mr Howe at page 7 of his report refers to the Koppio station being 8.2km SWest of the property. I do not regard the minor difference in direction and distance as significant for my purpose. He infers from the records at the Koppio Station that there was a period of above average rainfall between the mid 1960’s through to the mid 1980’s, then a period of below average rainfall between the mid 1980’s to the late 2000’s and since 2009 above average rainfall. Although the Koppio records for 2015 were not available to him when he wrote his report, the Tumby Bay records show the rainfall for the first six months of 2015 was 250mm compared to an average of 192mm. I accept his inference that the rainfall on Chris Borthwick’s property since 2009 has been above average in preference to Dr Semeniuk’s inference of less than average rainfall and I accept the conclusion that ephemeral springs should be evident by water flow at the moment. They were not seen at the joint inspection by the experts nor at the view I conducted.
A video was produced on the morning of trial showing water running in the vicinity of tag 8 apparently taken in the afternoon of 24 July 2014. In evidence Emie Borthwick told me that it had not rained prior to the video being taken. Rainfall records in Exhibit R2 for 24 July 2015 at the Yallunda Flat weather station show 25mm of rain, Koppio weather station show 20.2mm of rain and Tumby Bay weather station show 16.8mm of rain. I have evidence from Mr Howe that the rainfall measurement is taken at 9am on each day and one of the records confirms that. I conclude that a similar quantity of rain (that is 16-25mm) fell on Chris Borthwick’s property up to 9am before the video was taken and it shows rainfall runoff not evidence of a spring. When I viewed the vicinity of tag 8 on the view on 10 June 2015 there was no sign of any running water at that time.
Mr Howe regards the groundwater table as relatively stable across the site. It has been measured in test bores on the adjoined property and he expects it will be at similar depth below Chris Borthwick’s land. His view is supported by evidence that test holes drilled by Mr Mattsson of Lincoln Drillers in July 2015 are dry. The location of these seven test holes is shown on figure 2 at page 6 in Exhibit R1. Mr Howe tested 6 of these on his site visit on 5 July 2015 (he could not find OB5) with an electronic dip meter and detected no water in any of them (Exhibit R1 page 5). These were drilled to a depth of three metres except for OB4 which was drilled to a depth of 33.8 metres and that too was dry. It is asserted by Emie that some of the plastic liners put into the test holes dug by Mr Mattsson were not slotted and that explains why they were dry. But Mr Mattsson’s drill logs (appendix C to Exhibit R1) record no standing water in any of the holes indicating at these points the water table was more than 3 metres (and for OB4 more than 33 metres) below the surface. The material drilled up was clay so any geological complexity that might affect ground water was not evident across this site.
Mr Howe concludes that the points described as springs are all rainwater runoff. The greatest possibility of a spring lies at points numbered 1 and 2 which are on lower ground so closest to the groundwater. He does not concede they are springs. He notes at page 7 of his report that the ground water in the established water table has a salinity of 5,400mg/L indicating a recharge rate of 10-15% of annual rainfall (Exhibit R1, page 7 and Appendix D). He notes that in places where this groundwater comes to the surface salts are evident due to evaporation of the moderately saline ground water and nowhere were these salts evident at the sites of the claimed springs on Chris Borthwick’s land. Water samples with much lower salt concentrations would indicate a source of rain water rather than groundwater. He reports that Mr Mattsson tested water from five possible springs on the Chris Borthwick’s land in September 2014 and reported a salinity concentration of less than 250mg/L. He concludes this represents rainwater not ground water (page 9 Exhibit R1). He compellingly rejects the notion that an artesian source of ground water is present here (page 10 Exhibit R1).
In reaching a definition the court must have regard to common usage and the definitions in use by experts to arrive at a definition that is consistent with the context of the word in the Act and gives effect to the purpose of the Act. Common usage points to a spring being evident by water issuing from the earth. The geological/hydrological definitions include the fact that the water issues from the earth and runs or pools, though it may be intermittent. I repeat the Australian National Water Commission definition which is consistent with other technical definitions: “A naturally occurring discharge of groundwater flowing out of the ground, often forming a small stream or pool of water. Typically it represents the point at which the water table intersects the ground level.” I adopt that definition and add that the purpose of the Act requires that although a spring may not be permanent, it must be sufficiently reliable to be significant for purposes for which the land is used. It is not proven that Chris Borthwick does or could rely on the alleged springs for his cropping or grazing sheep. The evidence is that at times of heavy rainfall the soil in this paddock is at times wet from the rainfall and that is a hindrance rather than a benefit. It is not proven that Emie Borthwick’s activity in relation to native vegetation is significantly effected in this area which on the evidence is regularly raked, ploughed and cultivated.
There are no proven springs here. The presence of diatoms, hydrophilic vegetation and piping in one area may indicate the presence of wet soil and soaks from short term retention of heavy rainfall. Wet soil and soaks are not springs for the purposes of the Act. A spring for the purposes of the Act must demonstrate a discharge of groundwater flowing out of the ground, often forming a small stream or pool of water with sufficient regularity and reliability to be valuable for the purpose to which the land is used.
Cultivated land
I refer to Exhibit P1. Much of the land in the MC4372 is cultivated. The extent of cultivation is controversial only in the area hatched in purple in Exhibit P1. This coincides to a large extent with the area that will form part of the proposed pit for mining.
The policy in s 9(1)(a)(i) of the Act dealing with cultivated land is to “protect the investment of an owner of land who is using it for a productive purpose.”[13] I accept the Director’s submission that since the definition of cultivation in Pewsey Vale Pty Ltd v Adelaide Brighton Cement farming techniques have evolved so that land now can be seeded for crops using hydroseeding and injection methods that do not need the surface to be turned with a plough. The point remains that to be cultivated the land must be seeded with a crop which is used for a commercial purpose.
[13] Pewsey Vale Pty Ltd v Adelaide Brighton Cement [2009] SAWC 8 at para 21.
The evidence in relation to the purple hatched area is a little vague and contradictory. Exhibit P5 shows the crop rotation cycles on Chris Borthwick’s land and notes that Wet Gully was cropped in 2009 with wheat, in 2011 with wheat and oats, in 2013 with Hindmarsh Barley and Mace Wheat and 2015 just the purple hatched part with Mace wheat. Chris says in respect of each of those years the purple hatched area was seeded. Emie’s evidence was that she was well familiar with the area due to her seed collecting activities and in 2013 the purple hatched patch was planted with barley from old seed that failed. Chris says it was planted with wheat that failed because the seed burst.
The fact that the only part of the wet paddock put to seed this year is the purple hatched area is surprising and Chris Borthwick’s explanation about an intention to fence it did not convince me. It may be that he raked it and put it to the plough this year to positively establish that the proposed pit area is a cultivated field. The miner points out that an Exploration Licence was granted over this this land in April 2012 so cultivation occurring after that date does not give rise to an exemption (s 9(2)). However, I accept the Borthwick’s evidence that the purple hatched area was cultivated on a rotational basis before that date and so it is exempt land. Chris Borthwick is the owner and has the benefit of the exemption.
I return to my earlier point that the intended purpose of the Act is to find an appropriate reconciliation of the rights of owners and farmers to enjoy the land and the right of miners to access the minerals in the land which will create employment and accrue value to the broader community. The Act also provides careful processes to ensure that mining will be done in an environmentally responsible way. It is not a proper purpose to use the court processes provided in the Act to stop mining. The history I have set out in this judgment suggests that at times the conduct of the Borthwicks has been calculated to cause delay rather than cooperate in finding a way forward that respects all the legitimate interests involved in this proposed project. For example, I mention the objections to entry for totally non-invasive purposes, preventing a Court ordered flora and fauna survey because a crop was sprayed, delaying Mr Howe’s access until 3 p.m. on 5 July 2015, and seeding only the area of the proposed pit. There may be explanations for each but in combination they suggest deliberate obstruction. I remain willing to assist the parties to negotiate an outcome in this matter that respects the purposes of the Act. If an outcome cannot be agreed, the Court will do its work to determine without delay an outcome that reflects the purposes of the Act and the conduct of the parties.
Exhibit Number Description P 1 Claims of exemption P 2 Photocopy of old ariel photo P 3 Old aeriel photo P 4 Map with names Google Earth: downloaded 2015 (may be 2011 image) P 5 Manunda paddock history P 6 Video – taken 24/7/2014 at P8 P 7 Map with numbers from the view P 8 Dr Semeniuk report P 9 Five page table diatoms R 1 Mr Howe report R 2 Rainfall records R 3 Two maps of weather station locations
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