Cadia Holdings Pty Ltd & Anor v State of NSW

[2010] HCATrans 42

[2010] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S367 of 2009

B e t w e e n -

CADIA HOLDINGS PTY LTD

First Appellant

NEWCREST OPERATIONS LIMITED

Second Appellant

and

STATE OF NEW SOUTH WALES

First Respondent

MINISTER FOR MINERAL RESOURCES

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 MARCH 2010, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR A.J.L. BANNON, SC:   May it please the Court, I appear with my learned friend, MR R.C. SCRUBY, for the appellants.  (instructed by Marque Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR H.R. SORENSEN, for the respondents.  (instructed by the Crown Solicitor’s Office)

FRENCH CJ:   Yes, Mr Bannon.

MR BANNON: Your Honours, the specific question for determination in this appeal is whether copper associated with gold in the Cadia Hill mines, mined by the first appellant on land owned by it and the second appellant, constitutes a publicly owned mineral or a privately owned mineral within section 282 of the Mining Act 1992. If I could take your Honours to the Act generally, it is 282 and 284 is the critical section. If I could lead up to that by starting with section 3, which indicates that the Act “binds the Crown in right of New South Wales”. Section 5 prohibits a person mining:

A person must not prospect for or mine any publicly owned mineral on any land otherwise than in accordance with an authority, mineral claim or opal prospecting licence –

That identifies various defined terms defined in the dictionary and one of those is “publicly owned mineral”, if I could take your Honours to that, the dictionary appearing at the back of the Act:

publicly owned mineral means a mineral that is owned by, or reserved to, the Crown.

To save coming back to it, just a couple of definitions above that is “privately owned mineral”, which is the converse.  The definition of “mineral” appears a couple of pages before, and provides:

any substance prescribed by the regulations as a mineral for the purposes of this definition, and includes coal and oil shale, but does not include uranium or petroleum.

I can indicate to your Honours that regulation 5 in the Mining Regulation 2003 identified or prescribed as minerals minerals which included gold and copper. A copy of that particular regulation appears in the respondent’s bundle of materials at pages 44 and 45, which your Honours may have just been handed, or may not have been. There is a long list there of prescribed minerals. It includes “copper” on the first page of the list, and “gold” near the top of the second page. Then returning to the definitions there is a definition of “mine” which provides that:

when used as a noun—any place, pit, shaft, drive, level or other excavation, drift, gutter, lead, vein, lode, reef or salt-pan . . . in, on or by means of which, any mining operation is carried on -

It encompasses, as the authorities indicate, going all the way back to the 16th century, that a mine can encompass both an open mine and a vein or lode of mineral or ore in the ground, and then there is the verb.  On the previous page there is a definition of an authority which is referred to in section 5:

authority means an exploration licence, an assessment lease or a mining lease. 

The first appellant mines.  The particular authority under which the first appellant is mining is a mining lease.  If I could then revert back to section 6 now – perhaps just pausing again at 5, the effect of 5 is, because it binds the Crown, nobody can mine including the Crown itself, the Crown being bound, otherwise than in accordance with an authority for any publicly owned mineral.  Section 6 provides that:

A person must not prospect for or mine any privately owned mineral on any land over which some other person is the holder of an authority or mineral claim.

Section 7 has a restriction where there is an applicant for an authority or mineral claim.

FRENCH CJ:   If you take a publicly owned mineral in accordance with an authority of the kind contemplated in section 5 then it becomes your property pursuant to section 11(1).

MR BANNON:   Once mined.

FRENCH CJ:   Once mined.

MR BANNON:   Once removed from the ground.

FRENCH CJ:   Then the argument becomes one about royalties.

MR BANNON:   That is right, but because of section 11, which provides that the title passes to the miner the question of royalty must be determined pre‑mining, otherwise you do not have to pay any royalty at all, obviously.  Then section 8 provides that:

A person must not, on any land –

even their own land –

mine any privately owned mineral –

without giving certain notice.  Section 11(1) refers to the provision your Honour the Chief Justice referred to:

declared that any mineral that is lawfully mined –

should have added lawfully mined –

becomes the property of the person –

once severed.  Then the structure of the Act is divided into dealing with those three different types of authorities.  Firstly, an exploration licence, section 13 provides for the making of an application for an exploration licence.  Section 19(1) provides:

An exploration licence may not be granted over any land –

which is the subject of an exploration licence in respect of the group of minerals that each of these licences or authorities is granted in respect of particular minerals.  Section 20 is a further restriction on the grant of an exploration licence where privately owned minerals have been mined with the consent of the owner.

HEYDON J:   What does all this have to do with the case?  I have read the written submissions and none of these sections are mentioned in your written submissions, from which I infer that they have nothing to do with the case.

MR BANNON:   We refer to the fact that the prerogative to enter is abrogated by this Act for two reasons.  One is that the Act binds the Crown and secondly, that the section 5 and section 6 identify that nobody can mine without a certain licence.  We did refer, I think, to section 19, for example, as an indication that where a licence is granted, 19, 38 and I think it is 68 I think we referred to, as being indications that where an authority is granted nobody else can be granted an authority.  Just in furtherance of the proposition that if, as here, mining leases have been granted to my clients the Crown cannot grant itself a mining lease.

HEYDON J:   So this is really your so‑called second argument.

MR BANNON: Yes, quite so. All I was seeking to do then was to identify where these three types of authorities appear. There is an assessment lease under Part 4 commencing at section 33, with similar restrictions in 37 and 38, to grants where those are operative. Then the mining lease which – and often these things start with an exploration licence then develop into a mining lease – is section 51. Then that brings us to – mineral claims are referred to in section 73 – it brings us to, more directly, relevantly, section 282, which is the:

Liability to pay royalty

(1)The holder of a mining lease is liable to pay royalty to the Minister on publicly owned minerals recovered under the lease.

(2)Royalty that is payable to the Minister under a condition of a mining lease . . . is payable in addition to, and not instead of, royalty payable under this Division.

The rate of royalty is a prescribed rate, it is actually four per cent in this case.  Then 284 provides:

(1)The holder of a mining lease is liable to pay royalty to the Minister on privately owned minerals . . . as if those minerals were publicly owned minerals.

Under subsection (2) the Minister must after payment rebate in effect seven‑eighths of it, and the facts in this case are we have paid the full four per cent on both the copper and the gold, and we have asked for the repayment of the seven‑eighths and that has not been forthcoming, hence the dispute.  So these proceedings will determine the amount – the position in relation to money which has already been paid, which is in the order of eight or nine million dollars.

GUMMOW J:   What was the nature of the relief you were seeking?

MR BANNON:   Certainly an order for the payment of those moneys, but also declaratory relief which would determine the position going forward into the balance of the mines because there is much more mining to be pursued.

FRENCH CJ:   It is really just a statutory duty to pay you are asserting, is it not, at page 8?

MR BANNON:   Yes.

FRENCH CJ:   There is talk about unjust enrichment, I think.

MR BANNON:   It might have been out of enthusiasm.

GUMMOW J:   Or ignorance.

MR BANNON:   I actually can explain that because I think there was a concern as to whether or not an issue of payment under mistake of law, but once one analyses the provisions it realises you have to pay and you ask for it back.

GUMMOW J:   It does not matter any more if it is a mistake of law, does it?

MR BANNON:   No, but I think that was ‑ ‑ ‑

GUMMOW J:   That is what this Court said.

MR BANNON:   Yes.

GUMMOW J:   Along with a lot of other courts.

MR BANNON:   In any event, a closer look at the section realised that we did not need any mistake argument.

GUMMOW J:   So what was the remedy you sought?

MR BANNON:   Declaration on page 3 of volume 1, and then two, judgment for the amount of the royalties which have been paid and not – seven‑eighths of the amount of the royalties which we say should have been repaid.

GUMMOW J:   What relief did you get from Justice Hamilton?

MR BANNON:   We got a declaration and a judgment in a particular monetary sum, which was I think agreed ultimately in terms of calculation – at 746, declaration is at point 50 on the page.

GUMMOW J:   Some sort of mandatory order, is it?  Orders that the second defendant pay.  Could you not just get a judgment for a sum?

MR BANNON:   Yes, perhaps more felicitously and perhaps more accurately.  Then the only other provision in the Act is the reference to the saving of a royal prerogative in section 379.  We have given a reference in ‑ ‑ ‑

GUMMOW J:   What you seek from us is a reinstatement of those orders, do you?

MR BANNON:   Yes.

GUMMOW J:   If they do not pay, they are in contempt.

MR BANNON:   Yes.

GUMMOW J:   Good luck.

MR BANNON:   Perhaps it would be wiser to seek adjustment and a monetary sum.  We have referred in our written submissions at paragraph 21 – and we have not actually reproduced yet – namely, an explanatory note to the Mining Bill which simply described 379:

as a provision “preserving the Royal prerogative in gold and silver”.

We are not suggesting that is wildly informative or wildly determinative, but it is at least consistent with our argument which we say is that by the time the grants of land which were made, the prerogative was limited to gold and silver because the second or wider aspect of it had been effectively abrogated by the 1688 statute and had been so treated, in effect, or assumed in a number of authorities where the point did not directly arise.

So far as an example of the mining lease which is granted, just to indicate where these things appear, at 121 of volume 1 of the appeal book there are a number of mining leases and consistently with the Act at 123 at about line 50 the lease is for “the purpose of prospecting and mining for gold and copper”.  So far as the specified land is concerned ‑ ‑ ‑

GUMMOW J:   This expression “gold mine and silver mine” is not defined anywhere, is it?

MR BANNON:   No, not in the 1992 Act.  Then at 183 of the appeal book is a list of the various specified land titles and that index gives one the dates of the original land grants.

FRENCH CJ:   There is a grant reproduced, I think, at 196, is that right?

MR BANNON:   Yes.

FRENCH CJ:   Are there other grants ‑ ‑ ‑

MR BANNON:   All the grants are reproduced.  They are indexed by reference to – for example, if one goes to the index – the index indicates in relation to each portion all the relevant titles including the land grant.  I was just going to refer to two of them, the 196 one which is the first one, and the last one which is the only with any materially different wording, but no one suggests it makes any difference.

The one at 196 - none of them, other than the last one, contains any reservation referable to gold, so consistently this one does not, but there is a reservation at line 50:

AND WE DO HEREBY RESERVE unto Us, Our Heirs and Successors, all such parts and so much of the said Land as may hereafter required for making Public Ways, Canals . . . Sand, Clay . . . Indigenous Timber –

et cetera.  There is no reference to gold, but we have accepted, consistent with a number of authorities in the Privy Council to the effect that notwithstanding the absence of express reservation that gold is reserved, and then the ‑ ‑ ‑

GUMMOW J:   What is the theory of that?

MR BANNON:   The theory, which we have not contested, is that ‑ ‑ ‑

GUMMOW J:   You might not contest it, but I want to understand it.  What is it?

MR BANNON:   I am not sure that there is a logical basis.  I am not sure it has been clothed with any words to explain why it is other than it is taken as a given, from time immemorial, that it is not assumed that the Crown expressly has to hand over its gold if it is going to do it.  I am not sure I can assist your Honour with words as to what the underlying basis for the theory is.

CRENNAN J:   Is not the rationale in the Mines Act itself, that is to say, that gold is the most excellent of the minerals and is therefore associated with the sovereign.  The sovereign needs gold for coinage and war, those sorts of rationales are set out there.

MR BANNON:   Yes, certainly as to the reason for the existence of the prerogative, but as to why it is that it is always assumed that it is not handed over – as your Honour perhaps infers, it may be because of that that therefore it would require very clear words, but it seems to be taken for granted.  It is, I must say, a bit odd when one looks at, for example, the one at 196 which we have just been looking at where there is a very express dealing with a form of reservation, including a right of entry, including the right to take, on one view, as much land as one wants to build a road, that for one reason or another the right to do a similar sort of thing in relation to gold, and on the State’s argument, would include the second more extended aspect of the prerogative, to dig up as much copper or surrounding minerals as you need to get to the gold and so on, that that does not need to be mentioned.  We have not been as adventurous enough to date to suggest that this Court should change that position.

GUMMOW J:   Is there a legislative basis for this grant at 196?

FRENCH CJ:   The grant was made in 1869, was it not?

MR BANNON:   This grant was made in 1852, I think ‑ ‑ ‑

HEYDON J:   It was 1868, was it not?  No, that is when it was advertised.

MR BANNON:   It was 1877, I think.

HEYDON J:   25 January 1878?

GUMMOW J:   Yes – the top of page 197.  What was it that provided for these grants to become registered?  It begins to look like a Torrens certificate of title, you see, looking at the endorsements at 197.

MR BANNON:   Paragraph 34 of our submissions identifies the way we say that the authority to make a grant was made, namely, in the case of grants made in 1852, regulations in force under the Land Sales Act 1842 (Imp) required grants of Crown land to reserve precious minerals or metals if it be known that they greatly abound in the district and otherwise and by operation of the Australian Waste Lands Act 1855 those regulations remained in force at the time of the grants of 1856 and 1859. Then at 35 we address the fact that until 1855, near the top of page 10 ‑ ‑ ‑

GUMMOW J:   Is it not the position that the imperial government controlled this?

MR BANNON:   Until 1855.

GUMMOW J:   Yes, and then local legislation was permitted.

MR BANNON:   Yes.

GUMMOW J:   Is that what was happening?  These regulations they are talking about, were they under the Crown Lands Alienation Act 1861 (NSW)?

MR BANNON:   Yes.

FRENCH CJ: Under the Constitution. The State Constitution had to be authorised by the Imperial Parliament because it went into the area of disposal of waste lands of the Crown which had not been authorised, I think, under the Constitutions Act 1850.

MR BANNON:   We have identified in the paragraph on page 10 that section 2 of the Constitution Act invested New South Wales legislature the management and control of the waste lands, including royalties, mines and minerals.  Then if I may refer to the one grant which has a different ‑ ‑ ‑

GUMMOW J:   At some stage, part IVA of the Real Property Act 1900 is engaged, is it?

MR BANNON:   I am sorry, your Honour?

GUMMOW J:   At some stage, looking at page 201, part IVA of the Real Property Act is engaged.  It is being treated by them as Torrens title lands, is it not?

MR BANNON:   Yes, it would appear to be so and it is certainly held as such.  Then the other grant in different language appears at 414.

GUMMOW J:   The reason why I raise this with you, Mr Bannon, is at page 6 of your pleading you talk about your clients being freehold owners if it is land under the provision of the Real Property Act.  It is not quite right.  This would be true of an enormous area of land in New South Wales that is land under the provision of the Real Property Act that is rooted in a Crown grant at some stage after 1855.  Anyhow, go on.

MR BANNON:   Yes.  I was just going to say 414 identifies the ‑ ‑ ‑

GUMMOW J:   There is a question at some stage as to how the prerogative fitted in with the Torrens title and this we know, the creature we are looking at, we are not going to get very far.  We are back in the dream world of 1568 in another country.  Land title in this country is rather different.

MR BANNON:   The way we have approached it, your Honour, insofar as it was subject to the royal prerogative on grant, then ‑ ‑ ‑

GUMMOW J:   It is Torrens land.  It is a title by registration by force of some statute.  It is not a title existing somewhere in the sky under the common law which is then registered.  This is basic law school stuff, I hope.

MR BANNON:   Yes.  We have not argued that indefeasibility ‑ ‑ ‑

GUMMOW J:   You should not really have to be agitating about this on the first day of an appeal in the High Court of Australia.

MR BANNON:   Well, we certainly have not put the argument that the indefeasibility meant that the royal prerogative was defeated or defeased.  May we look at that in the course of the day.  At 414 is the reference at about 50 to:

Our Heirs and Successors, and to our and their Lessee or Lessees all Gold and Mines of Gold, with full and free liberty and power to search for, dig –

Then the evidence, or part of the evidence, in relation to the nature of the co‑existence of the gold and copper in the ground of these mines appears by way of example at page 524, which is the commencement of a report of a Mr Fredericksen who is a principal geologist at the Cadia Valley operations.  He describes at 527 in paragraph 3 the proposition that gold being:

relatively inert . . . is usually found as the native metal . . . or alloyed with a specific group of elements, namely Silver, Copper –

all those other matters.  At 4:

Occasionally large accumulations of native gold . . . occur but usually gold occurs as minute grains.

Then over the page at page 528 he describes by references to paragraph 8 and a particular table the forms in which copper subsists. Then at 529 he describes that the characteristics of the “Cadia Hill, Cadia Extended and Ridgeway Deposits” which cover these mines as consisting of, in paragraph 1:

deposits are classified as Porphyry Cu-Au deposits –

and in paragraph 2, the first sentence –

The characteristics . . . are such that both gold and copper coexist in each of the deposits.

GUMMOW J:   Mr Bannon, I am sorry to interrupt you, but you took us to pages 196 and 197, I think.  Is that the Crown grant referred to in the certificate of title at 193?  At some stage your junior can dig out for us the reference to the relevant certificates of title of the land of which the first appellant is the registered proprietor.

MR BANNON:   Yes.

GUMMOW J:   What we are construing is the reservation in the Crown grant, I imagine, in the second schedule to the relevant certificates of title.  Unless we get our feet on the ground, as it were, we are not going to go under the ground very well. 

MR BANNON:   Yes.  I think that is the answer that I should have provided to your Honour about 10 minutes ago.  I am indebted to your Honour.

GUMMOW J:   Are there other parcels of land as well?

MR BANNON:   Yes.  At 183 there is a schedule which lists the different parcels, describing them by reference to their portion description.

GUMMOW J:   That is not very helpful.

MR BANNON:   If I could ask your Honours to go to the index to this volume.  If one goes to the third page of the index there is a section headed “titles” and 183 is the first one and then each of the titles is divided under sub‑headings with Roman numbers in paragraphs in italics, being the various portions.  Grouped in relation to each of those headings with the page references is, looking at the first:

Portion 11 Vol 327 Fol 61 –

the last document in that grouping of documents is No 21 at 196 ‑ ‑ ‑

GUMMOW J:   I do not want this description about freehold.  I want the actual certificate of title.  Is it in evidence?

MR BANNON:   Yes, but I am just indicating, your Honour, that No 21, for example, the grant of land – that is the grant, if one goes up, the relevant certificates of title appear in the grouping.

GUMMOW J:   Yes, but do we have the relevant certificates of title in the book?

MR BANNON:   Yes.  For example, for 196 it is 193 and 194.

HEYDON J:   So a certificate of title was granted on 17 March 1955 and then another one was granted in 1997.  Is that the position?

MR BANNON:   Yes.  The same pattern follows under each heading.  Over to the next page of the index item No 40 is the relevant grant and immediately above it are the relevant certificates of title pertaining to that grant – and they are all in the appeal book.

GUMMOW J:   At some stage it would be helpful if your junior could just write out on a sheet of paper the relevant pages in the appeal book we need to look at for the actual certificates of title.

MR BANNON:   Yes.

GUMMOW J:   Because that is what we are construing.  We are construing the reservation which refers to these Crown grants, and then we get back to the Crown grant.

MR BANNON:   Yes, I accept that, your Honour.  Thank you.  If I could then come back to the evidence as to the co‑existence of the gold and copper.  As I say, at page 529 of the book, within Mr Fredericksen’s report he identifies at about line 30 - point 30 on the page, in paragraph 2 the co‑existence of the two substances.  There are then some remarks which are specifically directed to each section of the area.  At page 530 under the heading “Cadia Hill and Cadia Extended”, in paragraph 4:

The sulphide assemblages associated with the quartz‑calcite‑sulphide veining comprise the major copper bearing minerals chalcopyrite, bornite, and minor amounts of chalcocite, digenite and covellite with pyrite and molybdenite.  Native gold exists as inclusions in pyrite, chalcopyrite and as free grains within the quartz‑calcite veins.  These associations are shown in the photomicrographs of polished mineral sections shown in Appendix C.

If I could invite your Honours to look at appendix C which appears at 566, the second photograph on that page, because I do not think there is any gold shown in the top one.  Bearing in mind these are microphotographs which are described as not “visible to the naked eye in drill core or hand specimen”, the bottom plate is described at PLATE 20 and it says, “A small grain of native gold . . . lies within chalcopyrite”, chalcopyrite being described earlier in the report as a copper deposit.  If one looks at that image, the native gold is the bright spec of gold within the paler shade of gold.  This was evidence before Justice Hamilton, but this is the detail of it.

The significances of it is obviously, where we are heading in all of this is to say when one talks about, is this a so‑called mine of copper of the type which the Case of Mines was talking about and which we say was abrogated by the 1688 Act, nothing can be clearer that this is a large amount of copper speckled with gold.  That was the physical evidence and, on any view, it befits the description “mine of copper”.  Another example of that is on page 567.  One actually cannot see in the top photograph the bright gold spec because that yellow one can see is the yellow chalcopyrite, but apparently it says there is a small gold spec in there.  One can see it a bit better in the next photograph that the bright bit of gold in with the bornite which is brown in vein quartz.  Now, if I just go back to page 530 of the report at line 50 in paragraph 4, as the expert evidence indicated:

Essentially the gold is very fine grained and rarely visible to the naked eye in drill core or hand specimen.

Then over the page at 531 at paragraph 7:

When expressed in the same units of measure, the average gold grade mined is 0.000073 % compared to the copper grade of 0.20 %.  This relative difference in metal quantity is further demonstrated by the metal delivered to the concentrator, being 93.8 tonnes of gold and 252,012 tonnes of copper ‑ ‑ ‑

GUMMOW J:   Going back to this form of relief, Mr Bannon, I am determined to start off on the right foot, this obligation, you say, is to repay under, what was the section?

MR BANNON:   Section 284.

GUMMOW J:   I think you used the word “rebate”, but it says “the Minister is to pay”.  That attracts the rule in Shepherd v Hills (1855) 156 ER 743 at 747, namely:

wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery –

and where the amount is liquidated, the action of debt is appropriate.  It is discussed at various places in this Court’s decisions including SCI Operations 192 CLR 205 at 313. All this chatter about unjust enrichment conceals failure to grapple what had been settled by Baron Parke a long while ago in Shepherd v Hills.

MR BANNON:   Yes.  I think as I endeavour to explain, I think the unjust enrichment was prior to a proper reading of that section, but ‑ ‑ ‑

GUMMOW J:   You needed a recovery as in debt?

MR BANNON:   Yes.

GUMMOW J:   Not some mandatory injunction.

MR BANNON:   No.  I think we asked for judgment in a monetary sum and I am not quite sure what happened between the end of the agreed terms, but I accept, your Honour, that if we are successful, the appropriate order should be a judgment for a monetary sum which can be agreed.

FRENCH CJ:   Just in relation to the report that you took us to and the micrographs and so forth, can you point us to the relevant finding of fact in the judgment of Justice Hamilton?

MR BANNON:   Paragraph 4 at 715 refers to the fact that, in the second sentence:

The evidence also shows that the gold and copper are intermingled in the ore, so that neither can be mined separately.  The metals are separated only during the course of processing the ore.

That evidence of Mr Jackson was not controversial.  It was an agreed report which went to the other issue as to whether or not it can be mined separately.

FRENCH CJ:   The questions are being speckled and so forth.

MR BANNON:   Yes.

FRENCH CJ:   Quantitative relationships really do not enter into this finding.  It is just the fact that they are intermingled and you cannot get one out without the other.

MR BANNON:   Yes.  I suppose it is the sentence “intermingled in the ore” that is the ‑ ‑ ‑

FRENCH CJ:   Yes.

MR BANNON:   At paragraph 57 of his Honour’s judgment, his Honour refers to, in terms of the quantity ‑ ‑ ‑

FRENCH CJ:   It was the relative extractions.

MR BANNON:   Yes, and that is picked up by Chief Justice Spigelman at page 780 where, in paragraph 14, at about line 50, his Honour says:

The quantity of copper extracted from the relevant land during the relevant period was about 125,000 tonnes.  The quantity of gold was about 835,000 ounces.

So that comes from that same part of that report.  Can I just correct a figure which we have in our submissions, paragraph 8 of our submissions on page 2.  It says “About 125,000 tonnes of copper and 737,746”.  That is actually wrong.  The actual figure is 835,348 – the footnoted reference being a reference to the sum of two columns in a table.  But the correct figure of 835,348 explains – and that was what was submitted to the Court of Appeal and indeed before Justice Hamilton – Justice Spigelman’s reference to 835,000 ounces.  The effect of that is it is about, if one compared the ratio of one to the other, it works out at about 99.9 per cent weight copper to 0.1 per cent gold.  Could I then go back into ancient history, if I may.  As a prelude to that, without perhaps ‑ ‑ ‑

HEYDON J:   Tudor history, actually.

MR BANNON:   Tudor history, thank you.  No, I was actually going a bit earlier than that.  There is a bundle of materials which the respondent has provided which includes some copies of some texts.  Without reading it, can I give your Honours a reference.  There are a number of different versions of Bainbridge which have been referred to.  At page 68 of that bundle there is a version of Bainbridge, which is the 1900 version, which provides a background to the English law which decreed that the Crown had rights in gold and it is said to have derived from Roman law which divided the ownership of the State into dominium strictum and dominium utile, which became Ager Romanus and Ager Publicus. 

Then over on page 70, using the numbers at the bottom, under the heading “GOLD AND SILVER MINES” it is said that the Roman tradition of adopting the local customs of countries conquered include the adoption of countries such as Spain and Macedonia where the state claimed gold and silver mines and that that was taken up as part of the Roman law.

Then the following page 71 there is a discussion of taking of that by various emperors, the maintenance of that.  That is put as part of the background to the “Mining Rights of the English Crown”.  At the bottom of 71 it asserts:

that the English law agrees with the Roman law in the respects following, that is to say, - Firstly, in respect of the so-called royal mines (being mines of gold and silver), these mines are the exclusive property of the crown, as well legally as beneficially, in the same manner and to the same extent (at least in England) as were the like mines in Roman law, that is to say, free from any right or rights of the subject therein.  But, Secondly, in respect of all other mines (being mines of the so-called baser metals, or baser substances), these mines . . . have been conceded (with the exceptions hereinafter mentioned) –

and I should have just added in that earlier text there was a discussion, at least in some of those countries like Macedonia and Spain, that all mines belong to the Crown but over a period of time, at least under English law, the suggestion is that some of those mines of baser metals were over many years apparently ceded to the subjects.  The suggestion is that the background to the Case of Mines ‑ ‑ ‑

GUMMOW J:   Does not Bainbridge say somewhere that it is doubtful whether gold or silver was ever found in a pure state England?

MR BANNON:   Yes.  There are some statements to that effect.

GUMMOW J:   Which makes Australia and California and New Zealand very different.

MR BANNON:   Yes.  The part of that text of that expert report talks about the frequency with which gold and silver is found on its own.  But part of these things may be partly a result of perception in the sense that one would only see the gold or only look for the gold, potentially and the extent to which later refining methods enable one to identify and refine other minerals with it.  But it is a matter of some significance in the way in which the Case of Mines, such report of it as we have – obviously, as your Honours will have seen, that it is a hearsay report based on what apparently the Queen’s Counsel told a reporter after the case, but I will come to that – but there is this point of what a gold mine is referred to.  We maintain, when one reads that report, the gold mine is referring to what is assumed to be substantially a pure gold mine. 

The expression “royal mines”, we say, covers mines which are pure gold mines or pure silver mines, or substantially pure, but also other mines in which the gold forms part of other ores.  So, we say, it has misconceived this attempt to describe, at least in the parlance of the royal prerogative, as gold mines something which consists of ore, of copper, in which gold is contained, whether it be speckled or sprinkled liberally because the parlance from the Case of Mines of gold mines is that that expression is reserved for pure gold mines.  It is a subset of their overall description ‑ ‑ ‑

GUMMOW J:   There were not any pure gold mines in England.

MR BANNON:   There seems to be assumed that – that is part of the criticism of the Case of Mines, that the author refers ‑ ‑ ‑

GUMMOW J:   No, it helps explain what they were talking about.

MR BANNON:   Well, obviously I am going to come to the Case of Mines and see what the language is – or the report of the Case of Mines – see the language is used, but what we submit is that the way in which they use the expression “gold mines” it was whether it is rational or whether it is like – could be supported by what is found in the ground or not, it is pure in the sense of pure or substantially pure, but I will come to that ‑ ‑ ‑

GUMMOW J:   It is nothing like Ballarat in the 1850s. 

MR BANNON:   No.  But to the extent that it derives ‑ ‑ ‑

GUMMOW J:   Where great nuggets are found in a pure state.

MR BANNON:   But to the extent that the whole title derives, in effect, in a sweep from Rome across to Britain, one may be covering a sphere of geology which would embrace a number of different types of mine and not confined to the English mine.

HAYNE J:   How much of Bainbridge is reinvention of legal history to make it accord with what was then understood to be Roman law?

MR BANNON:   It is hard to say, and I will just refer your Honours to it as what is said to be part of the background to the position.  In any event, according to Bainbridge, or that text of Bainbridge, the contest which arose in the Case of Mines is against the background where there seemed to be an increase of the rights – or perceived increase of the rights of landowners – this is referred to at the top of page 73 – to mines of base metals. 

Against that background may I then come to the Case of Mines itself?  I will refer to the page numbers of the English reprint, the relevant reprint starting at page 472.  The report describes it in the headnote as:

an information exhibited by the Queen’s Attorney . . . touching a Mine of Copper containing Gold or Silver -

The information asserts that the Attorney‑General, Mr Gilbert Gerard, prosecutes in the name of the Queen.  Dropping down a few lines:

whereas the lady the Queen now, by reason of her prerogative royal, is intitled to have and enjoy, and ought to have and enjoy, to her own proper use, all and singular mines and ores of gold –

Notice the conjunction of the mines and ores, they seem to have been treated perhaps hendiadically –

and of other metals whatsoever containing in themselves gold or silver, with all things concerning them –

Then dropping down a few more lines there is a reference to the “Newlands” lands –

in which there are certain veins or mines and ores ‑ ‑ ‑

FRENCH CJ:   Well, “mine” is there being used in the sense of a deposit, or a body of ore.

MR BANNON:   We would submit so, yes:

and ores or metal of copper containing in themselves gold or silver, which to the said lady the Queen appertain and belong, as in many records, rolls . . . the Queen . . . commanded and assigned one Thomas Thurland, clerk, and Daniel Howseter, to cause and procure certain lands to be searched and dug for such ore and metal, called ore of copper, containing in itself gold or silver, within the said wast or mountainous lands called Newlands –

and effectively searched and dug up.  The last four lines on that page:

By reason whereof the aforesaid Thomas Thurland, clerk, and Daniel Howseter, caused the quantity of six hundred thousand pounds weight of ore and metal of copper, containing in itself gold or silver to be dug up in the said wast or mountainous lands called Newlands, and there to be laid ready upon the land to be carried away from thence, endeavouring and intending to continue the said search and digging there, as they were commanded by the aforesaid lady the Queen, until Thomas Earl of Northumberland . . . and divers . . . entered, intruded, and made ingress –

and in effect prohibited or prevented the –

carrying away the aforesaid six hundred thousand pounds weight of ore and metal . . . dug up -

If I could then jump to page 477 of the English reprint, there is a paragraph at the very top of the page that recites the case.  It says:

All mines of gold or silver throughout the realm, or of base metal, wherein there is any ore of gold or silver of however small value, belonged to the King by prerogative ‑ ‑ ‑

GUMMOW J:   In a way, some real significance of this case is the constitutional significance, is it not?  Judicial power is determining the content of the royal prerogative.

MR BANNON:   Yes.

FRENCH CJ:   Because it is asserted not as a matter of law so much as a matter of practice.

MR BANNON:   Yes.  They certainly relied on instances of conduct in the past in support of the argument.  There is a summary of the case which I just commend your Honours to read without going through ‑ ‑ ‑

FRENCH CJ:   As well as the rationale, of course, the excellence of the King and coinage and all the rest of it.

MR BANNON:   Yes, I understand.  Then it continues:

The case was recited in this manner.  The Queen’s Attorney has informed the Court, that whereas the Queen by reason of her prerogative royal, is entitled to have and enjoy –

et cetera.  If I could then jump to page 479 and what is described as “The points of the case” about halfway down the page, the italicised heading:

And the matter was argued in the Exchequer-Chamber, in the said term of St Michael, before all the justices of England, and the Barons of the Exchequer, by Onslow, apprentice, the Queen’s Solicitor, Gerard, the Queen’s Attorney, and Wray and Barham, Queen’s Serjeants; and on the part of the earl by Shirborn and Bell, apprentices, and Mead, Serjeant.  And the matter was divided into three points.  The first was, if all mines and ores of gold or silver –

and again, I refer to the expression “mines or ores” as including ores.  So that the proposition that you could have ores which are effectively pure gold is not unknown in England, although they may be with other metals there or thereabouts, but the proposition of mines and ores, we submit, is – we draw attention to the way that is described –

which are in the lands of subjects, with power to dig the land, and carry away the ore, and other incidents thereto, belong of right to the King of this realm by prerogative or not, inasmuch as this is not recited in the Treatise . . . The second point was, whether or no mines and ores of copper containing in them gold or silver, which are in the lands of subjects, with power to dig, and carry away, and other incidents, belong also to the King –

The third, if that be so, in effect, whether the grant granted away the rights of the King or the Crown.  Looking at the next paragraph:

As to the first of these three points, Onslow alledged three reasons why the King shall have mines and ores of gold and silver within the realm, in whatsoever land they are found.  The first was –

I think as your Honour the Chief Justice referred to –

excellency of the thing, for of all things ‑ ‑ ‑

GUMMOW J:   The crunch is at 480, is it not, money, coinage, war, the Treasury.

MR BANNON:   That is right.  The opening submission was perhaps a gilded reference to the glory of the King or Queen.

FRENCH CJ:   And not having excessively wealthy subjects.

MR BANNON:   Quite.  So then the second reason is necessity, about the army, but all the references there are to gold and silver, in other words, to the actual mineral and the whole point is directed – all the reasons which are identified, good or bad, are all the references to the preciousness of the element.

Then God is brought into play just before the reference to [316], again by reference to the gold and silver dug out of the mines.  We then jump to page 491 of the report.  This is still part of the arguments presented on behalf of the Queen.  There is a new paragraph commencing “And against this nothing” about two‑thirds of the way down the page.  The sentence before that is the concluding part of the argument:

And hereupon they concluded that for these reasons, precedents, and other things abovesaid, all mines of gold and silver in the lands of subjects, if they are open, and all ores of gold and silver in the lands of subjects, although the mines thereof are not open (which cases are all one, and stand upon the same reason . . . with power to dig . . . belong of right to the Queen.

And against this nothing was said on the other side ‑

except by Shirborn who cited an opinion of Newton.  Then dropping down to the last few lines of the page it says:

And other things Shirborn said, which were not maintained by his companions.  For Bell said that he would not speak to this point either one way or the other -

and Mead, his second junior, actually contradicted him.  Then over the page at page 492 of the report there is the second point.  At the top of that page after the italicised words it says:

As to the second point, it was inferred for the Queen, that if the Queen shall have by her prerogative all ores, and also all mines of gold and silver in the lands of subjects, from thence it will follow in a manner consequentially that she ought to have these ores and mines of copper now in question, that is, as well the five hundred thousand pounds weight contained in the first plea in bar, as the other one hundred thousand pounds weight contained in the second bar.

That is a total of 600 -

For it is confessed that these six hundred thousand pounds weight of copper contain gold or silver, so that two metals are mixed together, the one copper, and the other gold or silver, and the gold and silver belongs to the Queen, and she cannot draw it out without melting the copper ‑

Again we emphasise the reference to:

the gold and silver belongs to the Queen, and she cannot draw it out without melting the copper; for in one same mass or parcel there may be copper and gold, or copper and silver, and in the melting of it it is discerned and divided, and not otherwise ‑

To recap, we say the first argument which is put is all based on the purity of the gold and silver.  The assumption of the first point does not refer to any other metals, contaminated or otherwise.  The second point is based on the right of the Crown to the gold or silver.  It continues:

for in one same mass or parcel there may be copper and gold, or copper and silver, and in the melting of it it is discerned and divided, and not otherwise; and if the Queen cannot have the gold and silver which belongs to her, without melting the copper, then she ought to have the copper to melt, for else she would lose her own ‑

So the logic of having the copper is to enable her to have the gold:

and if she shall have it to melt, she shall keep it to her own use, for she is not bound by the law to melt it, and to deliver the copper to the possessor of the land . . . But our law is more consonant to reason in all its provisions, and therefore it says in this case as in others, that because the gold or silver and the copper are together and indivisible in the soil, and are so incorporated that they are as one entire thing, therefore the gold and the silver being more worthy shall draw it to the copper ‑

Then at the bottom of that page, in support of that argument that:

where gold or silver is mixed with base metal, the King shall have the whole ore or mine –

Again that language there is supportive of the fact that the first thing he was talking about was substantially pure gold or silver.  Then they cite a whole series of cases of history.  Then at page 497 in the paragraph before the italicised words:

And it was said by some of them, that all mines of copper in the lands of subjects belong to the King, because there is none of them free from gold or silver; and this is warranted (as it seemed to them) by the precedents alledged under the first point, which concern as well mines of copper as mines of gold or silver.  And upon the same reason Gerard said, that mines of tin belong of right to the King, because there is no mine of tin without silver.  And therefore the power which the subjects of the King in the counties of Devon and Cornwal have to dig in their own land –

et cetera.  Then the contrary argument at 498 is put by Shirborn, Bell and Mead, looking at the paragraph near the bottom of the page, second sentence:

And they said that one thing is affirmed by the information, and that is, that the ore and mine in question is of copper containing in it gold or silver, which is not denied by the defendant, but fully confessed.  (a) And if the copper is of the greater value, it seemed to them that the Queen should have nothing, for the greater value shall be preferred, and shall draw to it the lesser.  And hereupon they put the said case of a (b) box and charters, where the heir shall have the box sealed along with the charters ‑

et cetera.  Then page 510 is the commencement of the report of the resolution of the matter, and the second complete paragraph on that page, a bit over halfway down, says:

And after these arguments made at the Bar, all the justices and Barons assembled several times . . . And then they took respite . . . they assembled twice, and at last they gave their several opinions, and the cause thereof, at which I was not present, for there were none present but themselves and the counsel who had argued for the Queen.  And (as I was informed by several of them who were there) their resolution was as follows.

Obviously it is not the greatest way to get a report, but anyway that is the way it is –

First, all the justices and Barons agreed, (a) 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, belong to the Queen by prerogative, with liberty to dig an carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore.

(b) Also Harper, Southcote, and Weston, Justices, agreed, that if gold or silver be in ores or mines of copper, tin, lead, or other base metal in the soil of subjects, as well the gold and silver as the base metal entirely belongs of right to the subject, who is the proprietor of the soil, if the gold or silver does not exceed the value of the base metal; but if the value of the gold or silver exceeds the value of the base metal, then it was their opinion that the Crown should have as well the base metal as the gold or silver; and in such case it shall be called a mine royal, and otherwise not; but if the base metal exceeds the value of the gold or silver, then it draws the property of the whole to the proprietor of the land.  But they three agreed, that forasmuch as the information sets forth that the ore and mine of copper contained in it gold or silver, and the defendant has not denied it, but has fully confessed it, thereby it shall be taken that the gold or silver were of the greater value, for the best shall be intended for the Queen; and therefore they assented with all the other justices and Barons, that judgment should be given against the earl, and for the Queen.

Just pausing there, nothing in the material before it, the description of the gold or the copper, suggests that there were trace elements of gold.  On the contrary, there is obviously a large amount of copper and contained within it substantial amounts of gold.  We say the Case of Mines, such as one can determine it, fits the evidence of this case as to the nature of the gold and copper:

But all the other Justices and Barons of the Exchequer unanimously agreed, (c) that if the gold or silver in the base metal in the land of a subject be of less value than the base metal is, as well the base metal as the gold or silver in it belong 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 (d) mine royal, for the records don’t make any distinction herein, but they are general, and prove that all ores or mines of copper –

and again that expression seems to be used “ore or mine of copper” indistinguishably, and again to accommodate, we would respectfully submit, the way it lies in the ground –

or other base metal, containing or bearing gold or silver belong to the King.

If I could then drop down to point (f):

Also they all agreed, that if the ore or mine in the soil of a subject be of copper, tin, lead, or iron, 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.

And (g) is particularly important:

Also they all agreed, that a mine royal, whether of base metal containing gold or silver, or of pure gold and silver only, may by the grant of the King be severed from the Crown, and be granted to another –

So what we submit is the expression “gold” and that sentence is key, but it is consistent with everything which appears above it, namely, that two categories of mine royal are identified.  One is pure gold or silver, gold mine, or the other alternative is an ore of another base metal which contains within it gold, and it does not matter how much gold, be it a small or large amount.

GUMMOW J:   What is the significance of the footnotes to this report?  This is a report in addition in 1816, is it not?  It is in the English Reports?  Footnote (d), for example, on page 511 of 75 ER.

MR BANNON:   I see, yes.

GUMMOW J:   It says:

But now by the statute of 1 W and M cap 30, no such mine shall be called a mine royal.

MR BANNON:   I think that is an editorial comment. 

GUMMOW J:   Yes.

MR BANNON:   It certainly supports our argument, but that is what ‑ ‑ ‑

GUMMOW J:   There is reference to Viner’s Abridgment too.

MR BANNON:   The mischief obviously which we say that 1688 was plainly directed was exactly this sort of case, which is our case and to read down “mine of copper” by describing it or inverting the words and saying it is a copper mine, that it attracts some sort of lay assessment, we respectfully submit, misunderstands the fundamental proposition being put forward.  Whether it is sensible or not, they assumed, based on the arguments for the Queen, that gold and silver, they are the precious metals so we will call them goldmines or ores under the ground, let us assume they are substantially pure, you get those, that is a given, therefore, if you find it anywhere in anything else, in any other ore or mine of copper, that is yours as well, and that is also called a mine royal.  It is not a goldmine because it is not a pure goldmine or substantially pure.

So when you come to the 1688, when it talks about a mine of copper, that means any ore or mine of copper or the other three minerals identified that has got any amount of gold in it.  That is what it is referring to.  That is saying that is no longer a mine royal, notwithstanding what the Case of Mines said.  So going into the ins and outs of the Carberry’s Case or what was said thereafter really does not advance the position, but one can, we respectfully submit, confidently say the 1688 was directed to remedying a mischief or a difficulty posed by the Case of Mines. 

GUMMOW J:   Well, more than that, was it not?  What was happening with this statute was just after the glorious revolution, was it not?

MR BANNON:   Yes.

GUMMOW J:   Very close after it.  Is it not a response to attempts by the Stuarts and James II, in particular, to expand the scope of royal prerogative?

MR BANNON:   Yes.  But your response to any attempt to ‑ ‑ ‑

GUMMOW J:   To get hold, for example, of copper, iron and lead, if there happened to be some gold there. 

MR BANNON:   Yes.

GUMMOW J:   I do not know, but that seems to be ‑ ‑ ‑

MR BANNON:   But certainly I think it is recited by ‑ ‑ ‑

GUMMOW J:   A lot happened between 1569 and 1688.

MR BANNON:   Yes.  There is no doubt, we respectfully submit, or the view is open that your significance to controlling the ability of the Crown post the glorious revolution to access treasure in potential contravention of rights of citizens was of key significance and in that context there would be no reason to read down what is otherwise the obvious meaning in any way of the 1688 Act.

GUMMOW J:   Is one right in thinking that section IV is still in force in New South Wales?

MR BANNON:   Yes, it is.  That was saved by the 1969 Act specifically.

GUMMOW J:   Insofar it is otherwise applicable in New South Wales it is preserved.

MR BANNON:   Yes. 

GUMMOW J:   But to put it more accurately, I suppose, it was picked up by 9 George IV.

MR BANNON:   Yes.

GUMMOW J:   And if it was picked up by 9 George IV, and everyone seemed to assume it was, it is still there, section IV is still there.

HEYDON J:   Is not a crucial question what was still there at the time of the grants, and the 1693 Act was still there at the time of the grants?

MR BANNON:   The 1693 Act was still there at the time of the grants as well.  I mean, our case primarily is to say section IV of the 1688 Act is all we need.

GUMMOW J:   But more than section IV was there at an earlier time.

MR BANNON:   Yes, that is true, and there may be arguments as to whether those other sections applied which referred to ‑ ‑ ‑

GUMMOW J:   Going to the Tower of London, it seems unlikely.

MR BANNON:   That is right.  But section IV speaks in its own language because it says:

Provided alſo, and be it further enacted by the Authority aforeſaid, That no Mine of Copper –

et cetera.  What the earlier sections were clearly referring to, at least in part, was the delivery of mined ores to the Tower of London, but IV clearly stands additionally:

ſhall hereafter be adjudged, reputed, or taken to be a royal Mine, although Gold or Silver may be extracted out of the ſame.

Perhaps one can add the reference to “reputed, or taken to be” would perhaps address what would perceive to be a situation which developed after the 1688 Act, namely, if you are a landowner and a representative of the Crown comes storming onto your land saying, well, this is a royal mine, obviously that would put a citizen under significant pressure.  It would not necessarily – you would not just lose some money or a fine, you may lose a lot more than that in resisting.  With respect, we submit, it is open to the view that it was to make it absolutely clear that not only was it not a royal mine, it was being withdrawn from the prerogative, but also that a citizen was entitled to resist any assertion to the contrary.

GUMMOW J:   Because although in section IV it had the sense of even if ‑ ‑ ‑

MR BANNON:   Yes.  Just on that point, if one goes to the 1693 Act, which we submit informs the construction of the 1688 Act, section II, where the second sentence says:

That all and every Perſon or Perſons, being Subjects of the Crown of England, Bodies Politick or Corporate –

We would say that Egan v Willis is an example where one can interpret that as including citizens of Australia, notwithstanding it refers to citizens – when I say “citizens of Australia” I mean persons in the colony, landholders in the colony.  We put that forward and we rely on that, but we say even if that is not accepted then it still informs interpretation.  But if one continues:

that now are or hereafter ſhall be the Owner or Owners, Proprietor or Proprietors of any Mine or Mines within the Kingdom of England . . . 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 . . . notwithſtanding that ſuch Mine or Mines or Ore ſhall be pretended or claimed to be a Royal Mine or Royal Mines –

Again, we suggest that is consistent with citizens being subjected to, notwithstanding the clear terms of the 1688 Act and – the Carberry Case may be an example of this – that a vigorous assertion on behalf of the Crown is not something to be lightly dismissed.

HEYDON J:   Can I ask you a question about this legislation?  You say in paragraph 38 of your written submissions that section III of the 1688 Act required all gold to be sold to the Queen at the Tower of London.

MR BANNON:   Yes.

HEYDON J:   Do you maintain that submission?  If it was hers, how could it be sold to her – him and her at the time – because the Act did not disturb the Crown’s right to gold, did not disturb the ownership of the Crown in gold.

MR BANNON:   Yes.  This is addressed in Morgan - in Justice North’s decision in Attorney-General v Morgan.  He opines that that provision does not mean that there is any change of title, but it is just a payment by way of encouragement.  Whether the suggestion is sold I accept may be inapt.  We certainly do not say that it affected a title position.  The particular reference in the Morgan Case [1891] 1 Ch 432 – is at the bottom of 445:

The Defendant contends that the provision that the person giving up the gold and silver to the Mint is to receive the full and true value thereof is inconsistent with the right of the Crown to any part of it as a royalty; but it is nothing of the kind.  The fact that the man who has to take gold and silver to the Mint and leave it there is to receive the full and true value of what he so leaves has nothing to do with his title to it, or the terms upon or obligations under which he acquired it.  If, but for this section, such person would have had to pay a royalty, the section no more relieves him from paying it than it would confer a good title to the gold upon a thief who had stolen it.

Lord Justice Lindley, not quite so directly, refers to the fact, on page 456, in the middle of the page, after referring to the first of the Acts, about the middle of the page:

This enactment did not affect the right of the Crown to gold or silver in any mine.  The Act prevented the Crown from claiming any copper, tin . . . on the ground that it contained gold . . . abrogated the right of the Crown to any copper –

but did not affect the right of the Crown to the gold in the copper.

HEYDON J:   His next sentence is against your construction, “the gold or silver, if any, remained the property of the Crown”, and does not Mr Justice North’s construction amount to a misconstruction of the language of section III of the 1688 Act?  It refers to a –

place hereby appointed for the disposal thereof, [being] their Majesties Mint within the Tower of London; at which place they –

that is to say, King William and Queen Mary –

are to receive the full and true value for their gold –

by actually getting it.  The person who processed it to get the copper out has to hand over the gold and silver at the Tower of London.

MR BANNON:   To the extent we assert to the contrary, in our submission, it is not something which is essential or even significant for our reasoning processes.  In other words, it does not, and to the extent of negative effects, we withdraw it.  Perhaps I should say this, that our argument ‑ ‑ ‑

HEYDON J:   To withdraw it is to undercut one of the Chief Justice’s arguments in your favour, so it may not be essential or significant, but it is slightly damaging.

MR BANNON:   Obviously we rely on section IV.  The interpretation of section III is not critical to our argument.  To the extent that, in effect, Mr Solicitor’s contention is that we and the Chief Justice have misconstrued “they”, then that perhaps is in our favour, or at least supportive of the proposition that title to the gold was not effected consistent with Lord Justice Lindley.  To the extent that the construction of “they” is as the Chief Justice put it, and as we have put it in chief, suggests ‑ ‑ ‑

GUMMOW J:   But the preamble would assist Justice North, would it not, the preamble to the 1688 Act?

MR BANNON:   Yes, I was going to say that the object of the exercise was to encourage as much as possible the delivery of gold and the refining of it.  It may not be patently clear, but if one bears in mind that if that if one does refine the gold, one has to get to the point of digging it out of the ground, and that no doubt expends money, one has to separate it from the copper and one has to refine it.  If at the end of the day the Crown is paying for the value of the gold, they are actually getting a pretty cheap price because they have not had to pay for digging it out and they have not had to pay for refining it, they just get the end product.

HAYNE J:   But the premise of that is to read “disposal” in the sense of “sale”.  “Disposal” in this Act, in section III, may be more naturally read as the place at which a disposition is to be made of what is to become of it, not disposition in the sense of assignment of title, transfer of title or anything of that kind, but should be, in effect, placed at the disposal of the Crown; shall be given into the Crown to be dealt with as the Crown sees fit.

MR BANNON:   Yes.  We obviously rely generally on the Chief Justice’s reasons, but, as we put below and we put before Justice Hamilton, we say there is a simpler route to all of this, namely, that once one understands that the Case of Mines was directed to a large ore of copper involving, on any view, not insubstantial amounts of gold, that created a problem both related to the glorious revolution and generally.  One sees section IV of the 1688 Act, there is no reason to read that as anything other than addressing the type of mine which existed in the Case of Mines, which is exactly this type of mine, which is any ore body which contains a unspecified amount of gold.

The embellishments and polishes which are added or subtracted to that argument by looking at the other sections we respectfully submit does not truly alter what we respectfully said is a tolerably clear line once one appreciates that, so that is why we say it is not essential to our argument, and ultimately it is not really essential to the Chief Justice’s reasoning.  Again, it is additional matters prayed in aid, but ultimately the Chief Justice’s reasoning as per Justice Hamilton is to say, having regard to the Case of Mines, having regard to the need and good sense of encouraging citizens to mine their copper, having regard to its place in history, there is no reason to read down a mine of copper in the way which has been done.

I should add, having regard to what we have submitted below, and again in the Court of Appeal and we repeat here, both Justice Hamilton and Chief Justice Spigelman suggest that it is potential to describe this as a mine of gold as well.  We do, with respect, differ – well, obviously, if the Court comes to that view and we still succeed we do not mind, but we say the better view is that – whatever may be the descriptions in mining journals or elsewhere in the parlance of the Case of Mines, and hence the royal prerogative, the expression “gold mine” is something which does not have these other ores in it.  So to the extent that Chief Justice Spigelman and Justice Hamilton tried to grapple with the proposition as to whether they are mutually exclusive or not, we say, well, they did not have to do that, they made it harder for themselves.

HEYDON J:   You maintain paragraph 54 though of your written submissions in‑chief, do you, or maybe draw the line ‑ ‑ ‑

MR BANNON:   In the alternative.

HEYDON J:   In the alternative.

MR BANNON:   Can we contend for this adjustment?  Use of the word “sold”, we would withdraw to the extent that it embraces the suggestion of sold because we put it more neutrally, the disposal as contemplated by the Act supports.

HEYDON J:   So you withdraw the word “sold” from paragraph 38?

MR BANNON:   Yes.

HEYDON J:   Paragraph 54 does not mention the word “sold”, it talks about requiring “the Crown to pay for”.  Do you withdraw that too?  Another way of putting this is do you defend paragraph 81 of the Chief Justice’s reasoning?

MR BANNON:   Risking being accused of dodging this question can I say, one, we say we put our argument independently of paragraph 81?

HEYDON J:  I am well aware of that, yes.

MR BANNON:   Secondly, we say that to the extent one needs to rely upon it, then we submit that that view is open of section III, and if that is the correct view we say it is not inconsistent with any argument.  Thirdly, we say if the converse view is the correct view of it, then equally it supports our argument anyway.  I am not sure whether I have fallen further into a trap or managed to ‑ ‑ ‑

HEYDON J:   No trap, just try to shorten things.

MR BANNON:   Thank you, your Honour.  Could I then go back to the bundle provided by the learned Solicitor just to direct a brief reference to part of another version of Bainbridge – this is the 1878 version – which commences at page 48 of that bundle.  The passage I wish to refer your Honours to is stamped page 55 and which is a reference to the author’s analysis of Case of Mines.  Next to the words “conclusion,–as to gold and silver only” the way it is described is:

And it was concluded, on behalf of the crown, for the reasons and upon the precedents aforesaid, that as to mines of gold and silver only, all such mines in the lands of subjects, whether the same mines were opened or unopened, with power to dig . . . belonged of right to the crown.

Upon the question of mines, not being of gold and silver only, but of the so‑called baser substances, containing gold or silver ‑

et cetera.  We respectfully submit that is the correct analysis of the Case of Mines.  There are a couple of other parts of Attorney‑General v Morgan [1891] 1 Ch 432 I should take your Honours to.

HAYNE J:   With a view to demonstrating what?

MR BANNON:   I accept it does not decide this question, it just passes some remarks on what a mine of copper was understood to be.  We say Justice North, Lord Justice Lindley or Justice Lopes support the view a mine of copper is something which has copper which is worth working; in short not, in effect, elevating it to something which requires it to be a substantial amount of copper with no gold in it or only a small amount of gold in it.  It is consistent with our interpretation.  We accept Lord Justice Kaye has a view which is different, but I do not suggest for a moment that it is other than a step in the analysis of something which has not yet been specifically considered until this Court.  It is only a couple of those remarks which I was just going to refer attention to.  On page 443, a bit over halfway down the page Justice North says:

In this concession, however, no Royal mines, or mines of gold and silver, were included ‑

That is a distinction which was consistent with what we submit.  Then at the bottom of the page:

The well‑established right of the Crown to all gold and silver extended not only to those metals themselves when found in a comparatively pure state, but also to all other ores and substances containing gold or silver –

Again that is consistent with what we say.  Then the reference to “worth working” appears, for example, at 448 in the middle of the page.  I think I have referred to the relevant part of Lord Justice Lindley or had done so in our written submissions.  I do not need to trouble your Honours further in relation to that.  Could I then give your Honours these references without perhaps going to them.  Perhaps I will go to Wade v New South Wales Rutile Mining Company Pty Ltd 121 CLR 177 at 186 under the heading “The history of Australian mining law”.  Again I accept that his Honour was not deciding this question, but it is interesting to see how in some of these cases, admittedly in passing, the royal prerogative is described in Australia at a period of time after obviously the 1688 Act, namely, that:

Gold, the “royal metal”, has always had a special position in law.

Again the references are always to gold, and there is a reference to the Privy Council decision which described it similarly, and a reference to the Preamble in the 1894 Act in similar terms.  There is a reference at 194 to “Mines” and “Mining”.  It has been referred to by the various judgments, then they stop there.  But at the bottom of 198, another passage ‑ ‑ ‑

GUMMOW J:   Just stopping there for a minute.  Looking at 186, the 1894 statute is important then, is it not, New South Wales Mining on Private Lands Act of 1894?

MR BANNON:   That was the first instance where the Crown purported to permit mining on private lands.

GUMMOW J:   That speaks to the situation of the grant which you took us to at 1878, does it not, at page ‑ ‑ ‑

MR BANNON:   Page 414, I think.

GUMMOW J:   No, page 196.

MR BANNON:   Yes.

GUMMOW J:   The grant at 196 is just such a grant, is it not?  There was no express reservation.

MR BANNON:   Yes.

GUMMOW J:   This New South Wales statute is saying nevertheless.

MR BANNON:   That is so and we have accepted that, but the terms in which the statute expressed it was by reference to the royal metal gold, which is consistent with an understanding, we would say, on the part of the legislature that the wider prerogative had been abrogated by the 1688 Act.

HAYNE J:   Before you go on, the text of the 1894 Act would itself not readily have accommodated any notion that anything except gold was subject to a special rule, would it?  And you would need to go back, would you not, to the 1852 and 1857 legislation?

MR BANNON:   Those pieces of legislation have a definition of “gold” which is wider than just the substance, but those pieces of legislation are only directed to Crown land and the rights they are granting is to miners’ rights in relation to Crown land in respect of which the Crown owns all the rights anyway.

FRENCH CJ:   Also license fees, I think.

MR BANNON:   That is so, and one has to look at the whole of those Acts because what they provide for is miners’ rights and they grant rights to the miners to search for gold and the wider definition in that context is important because otherwise the miner might be concerned as to what the miner can actually do, but in that legislation the Crown is simply making it clear that they can mine for everything around the gold as well.

HAYNE J:   But when we look at the grant at 196, and I think at least some others of the grants to which you have taken us including the one at 414, they are grants to something called Scottish Australian Mining Company (Limited).  Presumably they were going to exploit the land.  Do we know either in the evidence, or do we know from the legislation that was in force at that time, what regime Scottish Australian Mining Company (Limited) confronted in digging up the dirt it had been granted?  It was granted land.  Presumably it was going to exploit it.  What was the regime that governed that exploitation?

MR BANNON:   As at 1878 there was no ‑ ‑ ‑

HAYNE J:   The grant is signed on 4 November 1877, the last line at 196.

MR BANNON:   I think the only mining legislation related to mining on Crown land, so that to the extent it was privately owned, and 1894 was the – the one we were just looking at it – first Act which permitted mining on private land.

GUMMOW J:   This is the Mining Act 1874?

MR BANNON:   1894.

GUMMOW J:   I am looking at 187 of Wade.  Maybe that is the answer to Justice Hayne’s question.

HAYNE J:   It may be that there is the answer, but also presumably, the two English Acts on one side of this argument or the other, will be said to be engaged, and if Scottish Australian Mining Company (Limited) was digging up gold, did it have to deliver the gold, did it have to pay someone, what did it have to do?  You may tell me that all of these questions are entirely irrelevant, and if they are, so be it, Mr Bannon.  But if they are not irrelevant, it would be nice to know their answers.

MR BANNON:   I think that the point about the 1894 Act was that that was the first occasion when the Crown purported to license persons to mine for gold on private land, so the 1874 Act may have dealt with minerals as well as gold, but it – I will just double‑check this over lunch – but it was all in respect of Crown land.  In other words, once it passed into private ownership, the Government was not purporting to license the mining on that land so that I think my answer to your Honour would be, that the regime in which they operated was they could mine away freely for minerals provided that they did not impinge on the royal prerogative, whatever the content of that royal prerogative was.

HAYNE J:   What, and if they found gold, transport it to Her Majesty’s mint at the Tower?

MR BANNON:   Well, to the extent that they were under the 1688 Act, they were free to mine for copper but without dint – and free to mine, notwithstanding it contained the gold, but they did not get title to the gold so they would have had to account for the gold to the Crown.  So, in other words, we would submit, the conclusion would be mining away in a copper mine, if they came across gold they would have to identify it, notify the relevant representative of the Crown and say, “We have found gold, what do you want us to do with it?  Do you want us to deliver it somewhere?”. 

FRENCH CJ:   Was there a statutory regime for that?  The Tower of London was a long way away.

MR BANNON:   No statutory regime in New South Wales of which we know.  But it would not alter the fact that if one came across somebody else’s – section IV would permit the activity to be carried out, but let it be assumed they were not obliged to deliver to the Tower of London.  By this stage, of course, 1693 had come into force as well.

FRENCH CJ:   And presumably upon delivery they would be paid value.

MR BANNON:   Correct.

HAYNE J:   But we have a mint opened in Sydney on 14 May 1855 as a branch of the Royal Mint.  See, for example, Quick and Garran at 574.  Now, whether on this land or other privately owned land, if gold is recovered in New South Wales before the Mining on Private Lands Act of 1894, is it important to us to know what was the statutory regime, if any, that governed the disposition of the gold recovered from private land, or are these questions which you say to me are irrelevant? That is a question not an interrogative statement, Mr Bannon.

MR BANNON:   I think we would submit it is irrelevant once one accepts that section IV applied, was carried over into the Australian law or law which governed the colony, to the extent that it enabled somebody to mine freely in an ore or mine of copper or the other minerals but did not alter the title in relation to the Crown.  Therefore, we would submit, the regime was what it would be perhaps of general law, namely that one would have to account for somebody else’s property if one came across it.

CRENNAN J:   Something might turn on the terms of the mining licences which were given to the miners in the gold rush times in relation to ownership.

MR BANNON:   Yes, as I say though, until 1894 all the licences were related to Crown land and they were related to gold, so that this issue does not really come up because the Crown owned everything anyway.

CRENNAN J:   Well, what did the miners in gold rush times – was there some obligation on them in relation to the gold?

HAYNE J:   To spend it at the nearest hostel.

MR BANNON:   Certainly there was a royalty obligation, the detail of it would be in the legislation and we will have a look at, but certainly there would be an obligation.  They were only allowed to obviously mine for gold on Crown land with a relevant permit and they were obliged from memory to pay out a royalty.  As to issues of delivery I cannot off the top of my head answer the question as to whether there was any specific provisions in relation to that but I will have a look at that.  But all I will say is that that was in relation to Crown land in which they owned everything anyway.

CRENNAN J:   I am just talking about the conditions of the licence in the context of whether or not they get value when they deposit it somewhere.

MR BANNON:   Yes.  I will check what the provisions provide for in that.  Hopefully the answer will come flying to me very soon.  The other part of Wade’s Case which I was going to refer your Honours to was the passage which appears at the bottom of 198.  Again I do not want to over‑elevate some of these remarks, but at the foot of 198 his Honour is referring to:

In other words, the landowner can be put in 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.

His Honour is addressing a particular provision of a particular version of the Mining Act, but that is a couple of sentences which are consistent with an assumption on the part of his Honour that the wider prerogative did not apply.  We have given references to this in our submissions, but in Woolley’s Case (1877) 2 App Cas 163 and the Privy Council at 166 when the prerogative is described, again it is by reference to gold and silver, not more widely. Similarly in Commonwealth v State of New South Wales 33 CLR 1 at page 19 the description is similar. I accept that there, in a sense, it reads in the wind because they are not squarely facing up to the issue which this Court has to decide, but to the extent that they are consistent with what we say, they are not unhelpful.

Can I then, lastly, refer to some parts of the judgments, firstly Justice Hamilton and then the members of the Court of Appeal.  Justice Hamilton’s judgment at 732, this relates to the second part of the case, or the second way in which we put the case, the paragraph commences, referring to the gold prerogative still exists:

So far as the Crown’s right to enter upon private land and recover gold and associated minerals is concerned, on the material available to me this right has never been exercised in New South Wales.  Furthermore, it is clear that, as a result of statutory provisions, this aspect of the prerogative no longer exists –

That is a submission which we put and which the learned Solicitor accepts.  That is the respondent’s submissions, paragraph 28.  Then paragraph 52 of his Honour’s judgment starting at page 737 through to paragraph 55 we submit that his Honour’s approach to the interpretation of the mine of copper concluding in paragraph 55 was correct.

As his Honour said in paragraph 57 at 739, it is very difficult to understand – there is a difficulty in asserting that this does not fit the characterisation as a mine of copper in circumstances when you have those ratios of copper, and we would add intermingled in the way it is in the evidence just like in the Case of Mines.  Then paragraphs 60 and 61 at page 740, we say that his Honour got it right there in those two paragraphs, with respect.

In terms of Justice Handley’s reasons, if I could go to those first, in addition to matters we put in writing could I refer to paragraph 138 of those reasons, which is at 817 of the appeal book?  His Honour sets out what Lord Macnaghten said in Lord Provost, which was relied upon by Sir Victor Windeyer in Wade.  What is actually set out there is, with respect, quite useful; namely that:

“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.”

So understood that is consistent with pure gold or pure silver.  Then at paragraph 144 on page 819 his Honour says:

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.

We take issue with his Honour’s description of things as gold/copper mine.  Then his Honour says:

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 –

So we agree with his Honour’s analysis that the 1688 Act, and indeed the 1693 Act, covered what were mines of copper, notwithstanding they “contained appreciable quantities of gold and silver”.  In other words, his Honour effectively rejected the proposition put forward on behalf of the State, namely, that the 1688 Act was only directed to something which only had trace elements or small elements of gold and silver.

That finding, one might have thought, would be a good basis for us to succeed, but his Honour – and perhaps I should also add this.  His Honour clearly and correctly said that the 1688 Act and the 1693 Act were directed to abrogating at least some mines from the royal prerogative.  Justice Basten, your Honours may have noticed, said his Honour agreed with the reasons of Justice Handley but a key plank in Justice Basten’s reasons was that the 1688 Act said nothing about royal mines and said nothing about withdrawing the prerogative, so that agreement of Justice Basten does not sit well with Justice Handley’s statement.

If I may say so, we appear to have had Justice Handley at 144 but we lost him over on 145 and 146 because his Honour took an approach which we say – if I may put it this way – it was really a lay approach to – and perhaps there is some magic in reversing “mine of copper” to “copper mine” and start looking for a name or an attribution which a miner might put to it in annual reports.  We say that is an analysis which was an overlay upon the 1688 legislation and was inappropriate.  Then at paragraphs 154 and 155 his Honour at 821 says:

The withdrawal of copper mines from the scope . . . was achieved by clear words.  . . . I can see nothing in those Acts, either in express words or by necessary implication, which withdraw mines of this character from the scope of the prerogative.

That involves, we say, an approach to what a copper mine was which does not sit with the mischief which the 1688 Act was directed to.  Then:

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 –

and we say that that statement is not actually supported by an analysis of the Case of Mines.  The continuum to extend gold mines into mixed mines is not supported by the Case of Mines.  Then going back to Justice Basten’s reasons at page 807 at paragraph 108 his Honour, we respectfully submit, correctly in the first says “Section 4 was not concerned with the extracted metal”, then paragraph 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 –

We would respectfully submit, even if that be the right analysis it is not, for reasons I have indicated previously, namely that the notion of encouragement of refining and delivery –

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 –

So in other words, your Honour poses the question in this way, if it is not the intention to override the prerogative with respect to royal mines, then it follows, and some other interpretation is the way to proceed.  In a sense, if I may say so, with respect, it really reverses the approach.  One has to approach it to see whether it does have that intention, and then in paragraph 110 his Honour says:

Whatever the precise scope of the 1688 Act, it was clearly not intended to repeal the royal prerogative with respect to royal mines –

We say to the extent that clearly was not intended to repeal the royal prerogative of all royal mines, but the Act specifically in section IV, as we have said in our submissions, refers to royal mines at the end of it, and it plainly was, with respect to his Honour, designed to withdraw some version of royal mines, what otherwise were royal mines, from the prerogative.  We respectfully submit that that involves error.  Then in paragraph 117 at 809, his Honour says:

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.

It did with royal mines explicitly, we respectfully say in respect of those reasons, and then at 123 and 124 – perhaps I do not need to go to those, but as I say, his Honour agrees with Justice Handley’s reasons as well at 125, and as I say there is an inconsistency there whereas Chief Justice Spigelman’s reasons are concerned, ultimately the key to his Honour’s analysis is the natural meaning to be given to “mine of copper” in the context, and we submit that his Honour’s approach consistently, as it was with Justice Hamilton, was correct and it should be adopted by the Court.  Whether or not one needs to agree with all of what I have described as the “subsidiary reasons” is neither here nor there. 

Could I then lastly say that we say that if we put in an alternative case, this was the subject of a notice of contention before the Court of Appeal and it was not decided at 763, namely to say that the abrogation by the 1992 Act of the right to enter to recover gold, necessarily abrogated, we respectfully submit, any right to the mineral in which the gold was contained.  When one analyses the purpose of the prerogative, or the support for the wider prerogative, it was simply to ensure that the Queen or the Crown could get at the gold without having to be the smelter for the servant.

The whole point of the Case of Mines was not to suggest there is any right in the Crown to anything other than the precious metals, but he or she got the benefit of the surrounding metals purely to serve the function of getting at the precious metals.  In circumstances where the Crown gives up the right to go in and get and, indeed, erects a structure where it can license others to get and charge a royalty for it, the Crown has given up and abrogated any right, whether one prescribes it as some sort of reservation to title or a specific title into an unspecified amount of soil or mineral, the Crown, we submit, as a matter of principle can give up that right and has done so.

GUMMOW J:   We are not talking about the Crown, we are talking about the State of New South Wales.

MR BANNON:   The State of New South Wales, I am sorry.

GUMMOW J:   That is another dimension on all of this.  I notice that – and in particular we are talking about the Executive Government New South Wales – in Justice McPherson’s book on The Reception of English Law, at page 79 there is a treatment of this subject which might require study.  There is a reference in footnote 304 to a case of Moore 17 Cal 199.  1861 is a significant date in California obviously.  That is a decision of, he was then, Chief Justice Field in California.  It is a very learned decision.  He agonised for some pages over the Case of Mines and said at page 221:

It would be a waste of time to show that none of the reasons thus advanced [in the Elizabethan case] in support of the right of the Crown to the mines can avail to sustain any claim to the State [of California] to them.  The State takes no property by reason of “the excellency of the thing,” and taxation furnishes all the requisite means for the expenses of Government.  The convenience of citizens in commercial transactions is undoubtedly promoted by a supply of coin, and the right of coin-*age appertains to sovereignty.  But the exercise of this right does not require the ownership of the precious metals by the State, or by the Federal Government, where this right is lodged under our system, as the experience of every day demonstrates. 

The right of the Crown, whatever may be the reasons assigned for its maintenance, had in truth its origin in an arbitrary exercise of power by the King, which was at the time justified on the ground that the mines were required as a source of revenue.

I know no one wants to talk about it.  The prerogative is not fixed in.....and the underlying circumstances may so change that it makes nonsense to talk of the prerogative any more in that particular aspect of it.

MR BANNON:   To embrace all of what was said there, your Honour, would involve us ‑ ‑ ‑

GUMMOW J:   This is not some wild statement.  It is a statement of a very learned lawyer.

MR BANNON:   Can I just say to embrace all of that would involve us resiling from the position we have consistently accepted throughout the hearing, that we have not sought to suggest we should not have to pay a royalty on the gold, and I do not ‑ ‑ ‑

GUMMOW J:   You have a statutory obligation.

MR BANNON:   I have got a statutory obligation to do it.  But certainly to the extent those sentiments reflect the persistence of the prerogative on any wider basis, which is only supported by the need to get at the said precious metal, then certainly that, we would respectfully submit, supports both the approach to the 1688 Act, but in our alternative argument, the abrogation of giving up by the Crown of any suggestion that they would be going in otherwise and getting the benefit of the licence of somebody else going in, so to that extent, the royal prerogative does no longer need to be recognised, if it otherwise would subsist, which would mean the effect of which we would have the benefit of the copper as well.

GUMMOW J:   The sentiments expressed by Chief Justice Field might throw some light, even at 1689, in construing section IV of that Act, it seems to me.  By that stage there was an emergence of a modern taxation system.

MR BANNON:   Yes.  That is what I was going to say, your Honour, but I might just identify it for myself just to make sure I have not listed – homework includes identifying the relevant certificates of title and the reservations addressing your Honour Justice Crennan’s issue as to what regime may have related to gold miners under the early legislation and further investigating Justice Hayne’s reference to the regime for the Scottish Mining Company to the extent it arises and further beyond anything I have said on that and also looking at those references your Honour Justice Gummow gave.

HAYNE J:   In considering the earlier legislation, the 1857 Act for New South Wales provided in section 4 for the duration and effect of a miner’s right.  One aspect of that was that during such continuance, that is continuance of the miner’s right:

all gold then being in and upon the said claim shall (except as against Her Majesty) be deemed in law to be the absolute personal property of such holder.

That has to be then understood with the further observation that in the 1874 Act, which dealt with regulation of mining on Crown land, section 15(6) appears, I think, to give the holder of a miner’s right:

absolute property in all gold found during the continuance of such right . . . in or upon such portion or portions of land whilst being in the lawful occupation of the holder –

Then with the 1894 Mining on Private Lands Act and the operation of section 3 which would again give rights, I think, in respect of mining for gold and possession of and ownership of, I think, the gold thus recovered.

MR BANNON:   We would submit that that is consistent with the way we approach the extent of the prerogative as at the date of that legislation, namely the Crown still retain the right to the gold and hence the ability to authorise people to mine it and also to grant title to it once recovered.  We will look further at those provisions as well and if there is anything we can add by reply or note to respond to those additional matters raised by the Bench.  May it please the Court.

FRENCH CJ:   Yes.  Thank you, Mr Bannon.  Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, at one level we seem to have to make out the daunting proposition that nothing has changed since 1568, but at another level what we are saying is that this is a case of a Crown prerogative that has not been abrogated by statute over that period.  Of course, in other Australian jurisdictions, it largely has been and, of course, it could have been in New South Wales, and still at some stage in the future could be, but the question in this case which has occupied some time in the courts below is whether the ‑ ‑ ‑

GUMMOW J:   But the prerogative is that which is recognised by the common law courts from time to time.  That is what the case of 1568 is not doing.

MR SEXTON:   That is so, your Honour, but it is ‑ ‑ ‑

GUMMOW J:   It does not mean that the common law’s attitude to it is rigid.

MR SEXTON:   Your Honour, but it has been preserved in New South Wales by statute.  It is still preserved and predecessors of section 379 over the relevant period have preserved the prerogative.  The question for this case, in a sense, is what it is constituted by for the purpose of this particular mine.  Can I say something, your Honours, about the ‑ ‑ ‑

GUMMOW J:   It says, “does not affect any prerogative of the Crown” whatever it might be as declared from time to time by courts of common law.  That is what section 379 is saying.  It is not re‑enacting the prerogative in a particular form and content at a particular time.  It is a saving clause of whatever might be there.

MR SEXTON:   Yes.  We would say, in other words, whatever is there in a sense at one level at the time of the bringing of this case, of course, but in another sense at the time when the grants were made.  Your Honours, can I say something about the Case of Mines in the light of what my learned friend has said.  One important thing to note, we would say, about the Case of Mines is that apart from being a mine of pure gold, it was in fact described as a copper mine.  That is how it is described in the headnote to the case and in various other – I will not take your Honours to them.

If your Honour looks at Bainbridge, page 73, in that set of materials that we have provided to the Court, for example, Justice North in Morgan at page 444, it is described as a copper mine and it is not, therefore, we would say, this particular case, although that, of course, depends, in a sense, in part, on the construction that is given to the 1688 statute, because the term there used is “mine of copper”. My learned friend and I have a difference of construction as to what is entailed in that phrase. Your Honours, can I go to that statute of 1688. It is in the materials at page 4 of that volume that we provided. It is perhaps easiest looked at in a typed up version. Your Honours will see that in section 4 the words “no mine of copper” and other metals.

HEYDON J:   It is not much good typing things up unless you type it entirely accurately.  This may be quite insignificant but take the words, “their Majesties Mint” in line 5 of section 3 in the typed version.  In the original “their” had a capital “T”.  Now, there is an argument against you, which we may or may not come to, that might turn on that, but mechanical reproduction has to be mechanically accurate, that is all I am putting.

MR SEXTON:   Your Honour has put to my learned friend some matters concerning that particular provision.  As your Honour will know from our written submissions ‑ ‑ ‑

HEYDON J:   You advance that.

MR SEXTON:   Yes, we do.

HEYDON J:   The slight problem I had is this, and I think there is an answer to it:  Their - with a capital T - Majesties met within the Tower of London at which place they, with a small t.  If they are capitalised in the possessive the fact that they are not capitalised uses the subject of a sentence or clause may be significant.  The problem is we live in an age where no one could spell their own surname correctly from one day to the next or the same way.  We do not live in that age – King William and Queen Mary did – so there may be no significance in it.  Anyway you would say, I suppose, what can “they” refer to except Their Majesties?  There is no other plural subject.

MR SEXTON:   Yes; and there is the problem of why they would be purchasing something that was already owned.  As your Honours appreciate, the question of what is meant by “mine of copper” in the 1688 statute is in some ways at the heart of this case.  We say it is inapposite here to describe this particular mine as a mine of copper.  It could be described in a number of ways but we would say not as a mine of copper.  This was the view that was taken – I should say, your Honours, that as will be indicated by the decisions below it has not been easy to be dogmatic about this particular provision and to some extent the materials that have been cited by both sides – none of them have of course been completely authoritative. 

My learned friend took your Honours to some passages in the judgments in Morgan.  It is possible to find support for both propositions that are put to the Court in Morgan.  I will not take your Honours to it but we have set out in our written submissions that Lord Justice Kay in a sense favours the construction we would advance in relation to the 1688 legislation.  My learned friend however has taken you to passages from Lord Justice Lindley.  When I take your Honours to the Law Reform Commission I accept that of course it can ‑ ‑ ‑

GUMMOW J:   The other construction of the statute said to be in 1688 is that the preambles are somehow given a section number.  Do you see what I mean?

MR SEXTON:   Yes.

GUMMOW J:   It may be that the “divers persons” in the preamble are the “they” in section 3.  I am not sure.  We tend to read preambles quite disjoined but they did not do it quite that way at that time in parliamentary drafting.

MR SEXTON:   There may be some question, your Honour, as to quite what the relationship is if there is any relationship between the initial materials, if I can call them that, and then section 4 as it is in the Ruffhead version which talks about mines of copper.

It seems, in a sense, perhaps to have been added to this other material, but whether it is actually connected to it seems to be a real question.  What follows from that is whether ‑ ‑ ‑

GUMMOW J:   Section 4 does not seem to be connected to the preamble, does it?  I do not know.

FRENCH CJ:   It is what we would call today a Miscellaneous Provisions Act.

MR SEXTON:   Exactly, a Statute Law Revision Act, as they are called in New South Wales, your Honour; that is right.  It does have some of that appearance, but it is hard to say of course at this distance.  I think there has been agreement between the parties that section 4 was designed to have an effect on the decision in the Case of Mines.  The disagreement is to what extent the effect of that is.

When I take your Honours to the Law Reform Commission, it is at page 86 in that volume of materials of ours, at about point 3.  It calls it section 3, which is from the authorised version of the 1688 legislation and it says it:

was passed to resolve doubts as to whether the Crown, by virtue of the Royal Prerogative, owned the minerals in mines of copper, tin, etc., which contained traces of gold and silver.  It provides that Royal Mines are not to include them even though gold and silver may be extracted.  This is a provision in favour of the subject and the draft Bill will preserve it.

HEYDON J:   So you say that what they call section 3 is what we have been calling section 4?

MR SEXTON:   Yes.

HEYDON J:   And section 4 Ruffhead, they say, that must be some addition to the statute?

MR SEXTON:   Yes.  But your Honours will see there the reference to traces of gold and silver, which is really the construction that we put upon that particular provision ‑ ‑ ‑

FRENCH CJ:   What is the source of that statement?

MR SEXTON:   It is from the Law Reform Commissions.

FRENCH CJ:   I know that, but what is their source for that proposition?  Is it just an assertion or what?

MR SEXTON:   I cannot answer that, your Honour.  That is why I say that the various comments upon this particular provision cannot be obviously taken as concluding the matter.  But it is significant, we would say, that the provision talks about adjudged, reputed or taken to be a royal mine, although gold or silver may be extracted out of the same.  We would say that the natural meaning of “mine of copper”, et cetera, there is to indicate a mine with so substantially one of those other metals as to meet that description.  One of the consequences of the Case of Mines was that even where there were traces of gold or silver, that the entire ore body would belong to the Crown, and it can be imagined that that was considered ultimately to be unsatisfactory and that this statute was designed to address that.

HAYNE J:   The manner in which the Law Reform Commission expressed the point may be contrasted with the way in which Holdsworth, who edited the constitutional law subject in 1st edition Halsbury volume 7, par 214, expressed the point.  Holdsworth said:

This right, however, does not (since the year 1688), extend to mines of copper, tin, iron, or lead, which are not to be adjudged, taken, or reputed to be royal mines although gold or silver may be extracted therefrom –

There is no quantitative qualification of the kind embodied in the word “traces”.

MR SEXTON:   No, your Honour, that is true, except that the description – it is only picking up the statute, but when it talks about mines of copper, et cetera, that is what we rely on in terms of the notion of substance.  There could be, one might imagine, cases where this question would be very difficult to determine, this characterisation question, but we say that this is not one of them where, I think, in terms of the royalties – what the royalties from the specified land show is that it is almost an even division between the value of the gold and the value of the copper.  I think, in the case of the broader mine, the value of the gold is somewhat larger.  But, in any event, this is not a case, we would say, that is close to the line, for example, where there is a relatively small amount of gold and an extremely large amount of copper.

Your Honours, can I go to the 1693 legislation, which is following on and again, there is a typed‑up version which may or may not be typed with perfect accuracy, but your Honours will see that in the first provision, it again uses the term:

subjects who have mines of copper, tin, iron or lead . . . doubts and questions have arisen upon the said statute –

and that this particular piece of legislation is -

for the better explanation of the said statute -

In our submission, that strongly suggests that this statute was not designed to alter the meanings that were used in the earlier legislation, and indeed it begins by using the same terms.  In the next provision, there is the phrase on which particularly my learned friend would rely, talks about:

mine or mines . . . in which there is copper, tin, iron or lead . . . notwithstanding that such mine or mines or ore shall be pretended or claimed to be a Royal mine -

which, we would say, may well be a reference back to the 1688 legislation where, notwithstanding the passage of that legislation, there was still an attempt to claim mines to be royal mines on the basis of small amounts of gold or silver, and what this statute is in effect saying is that that was what the 1688 legislation was designed to deal with, and it is underlining that in its own terms here, when it talks about “pretended or claimed to be a Royal mine”.

GUMMOW J:   I think your fundamental problem, Mr Solicitor, is that the Case of Mines is at a time when the Tudor assertions of the prerogative are at their height.  Then there are the troubles of the 17th century, attempted revivals, by 1688 it is all over as regards arbitrary government without Parliament, and then we get this statute.  The statute of 1688 is at a time when the prerogative is in decline or eclipse and everybody knew it, particularly the people who turned up to pass it.  That is the historical context of it and any interpretation that will eke out some further leverage for the Executive was not, it seems to me, one that one would readily embrace.

MR SEXTON:   Your Honour, I do not think that the new regime after 1688 intended to, or did, dispense with many aspects of the prerogative, but your Honour is quite right to say that there was, in a sense, an issue of royal power under James, but it ‑ ‑ ‑

CRENNAN J:   There was a very fine sense of limits to be placed on the Crown by comparison with what the previous position had been, set out then in the Act of Settlement that follows.

MR SEXTON:   Yes, in a political sense that is certainly right, your Honour, but ‑ ‑ ‑

GUMMOW J:   In an economic sense, too.

MR SEXTON:   But the Crown’s prerogative in relation to gold was, we would say, something that perhaps was not in the forefront of those matters and indeed, of course, it continued on in terms of statutes in this country and, in a sense, is still preserved.  The point about both pieces of legislation is that they were certainly designed to deal with what was seen to be a problem arising from the Case of Mines.  I do not think there is any argument about that.

GUMMOW J:   An inhibition upon economic activity, that is what the preamble is complaining about, is it not, actually?

FRENCH CJ:   Sovereign risk causing people to go offshore. 

HAYNE J:   Or about alchemy, I think, the craft of multiplication which I assume is alchemy.

MR SEXTON:   That is why I say that it is hard to perhaps – it is not easy to see the connection between that and, for example, the section dealing with the Case of Mines. 

HAYNE J:   Do we know other than what appears in the text of the Act what occurs between 1688 and 1694 to provoke the 1694 legislation?

MR SEXTON:   It is said to be – if one looks at Bainbridge it is sometimes said to be Sir Carbery Price’s Case which - lead and silver in Cornwall, I think, your Honour.  Just quite how that fitted in with – it depends, of course, to some extent upon the – I think there is some discussion of this in the Chief Justice’s judgment in the Court of Appeal.  It depends to some extent on the quantities of silver in comparison to the quantities of lead perhaps in relation to those mines which would tell you why the 1693 Act was thought to be necessary in relation to its predecessor.

So the question is to what extent these statutes were designed to cut down the prerogative that existed arising out of the Case of Mines.  It seems to us by the language used that it is designed to deal with a situation where relatively small amounts of gold and silver were used to prevent or discourage mining but that it was not intended to address a situation where, for example, when there is a reference in which there is copper, tin, iron or lead in the 1693 statute, a situation for example where there is a very large amount of gold and, for example, a very small amount of copper, tin or iron it is hard to imagine that the statute wanted to affect that particular situation.

FRENCH CJ:   I notice that the Royal Commission report at page 101 refers to the 1693 statute as superseded by section 70(12) of the 1906 Mining Act which I think, looking at page 28 of the materials, was introduced in 1952, according to the marginal note.

MR SEXTON:   That is right, your Honour.

FRENCH CJ:   Was there anything earlier that had a similar effect?

MR SEXTON:   There was a provision in the 1906 Act and it was amended but not perhaps significantly in 1935 and then that provision was introduced in 1952.

FRENCH CJ:   This has ancestors in the earlier versions of the 1906 Act.

MR SEXTON:   Yes, that is right.

FRENCH CJ:   In the 19th century were there any colonial equivalents or precursors?

MR SEXTON:   Not that I am aware of, your Honour, but I cannot be completely dogmatic about that.  It is not clear to us how in fact that particular provision would relate to and have the effect in relation that the Law Reform Commission attributes to it.  I can take your Honours to it after lunch, although I am not sure that it answers any of the questions in this case.

FRENCH CJ:   All right.  Perhaps we will adjourn now until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ:   Yes, Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, can I go back briefly to the 1693 legislation.  I wanted to take your Honours to two quotations and they are conveniently located in our written submissions at paragraphs 22 and 23.  We appreciate, your Honours, as I said before the adjournment, that it is possible to find diverse comments in Morgan on this subject, but Lord Justice Kay at 462 – and it is set out there in that paragraph 22 – we would say expresses a correct view in relation to the 1693 legislation when he says that it:

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 mine “in which there is copper, tin, iron, or lead.”  It certainly does not refer to a mine in which none of those metals are found, although such mine might contain gold or silver.  In fair grammatical construction, it appears to me that this statute only applies to mines of copper, tin, iron, or lead – 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.

That is, in many ways, the point of difference between my learned friend and myself.  In the following paragraph there is a quote from Justice Hargrave in Wilson’s Case in 1874, where he says that the statutes were “obtained by the efforts of Sir Carbery Price, in order to restrain his royal prerogative in relation to the small quantities of silver obtainable from some Cornish mines”.  We do not know what Justice Hargrave’s source was for that comment but, for what it is worth, it supports the idea that statutes were designed to deal with a situation where small quantities of gold and silver were being used to make a claim for a royal mine.

The statute itself, of course, in section III of the Ruffhead version, provides a purchase scheme, in effect, in relation to mines which I can just describe at the moment as having mixed minerals including gold and silver.  It seems to us that those provisions could never have really been applicable in New South Wales for a number of reasons, including the fact that the values would have been presumably overtaken by that time.  But it perhaps does support the proposition that again the statute was designed to deal with a situation where there is relatively small amounts of gold and silver because one might assume in that situation there would be no incentive for the Crown to purchase the ore body in the way that is provided for in section III.

Can I say something about the notion of royal mines.  We say that when various statutes refer to gold and silver mines, that, as section 379 of the Mining Act does, the current section, that those terms are used, in effect, interchangeably.  The reference in some of the earlier legislation up until 1874, and that I will not take your Honours perhaps to it, but they are set out in that volume of materials that we provided.  Up until 1874 there was a similar provision preserving the prerogative but it referred to gold mines and goldfields rather than gold mines and silver mines, where we would say that it is to the same effect.

We would say that that reference to gold mines in that earlier legislation, and gold and silver mines in the current legislation, includes the notion of a royal mine, and that notion as it was set out in the Case of Mines.  If I can just refer your Honours to two authorities in that.  These are set out at 30 and 31 in our written submissions. 

The first is to Woolley v The Ironstone Hill Lead Gold Mining Company where Justice Molesworth said at 247 that – talking about the Crown being “entitled to all gold and silver mines”, and then shortly afterwards he talks about “royal mines”, and we would say clearly equating those one with the other.  Similarly, in Morgan at first instance, Justice North at 443, refers to “Royal mines, or mines of gold and silver”; again, we would say, making the same point.  We have referred also in those submissions to Barton v Commonwealth (1974) 131 CLR 477 to rely on it in the same way that Justice Handley and Justice Basten did in the Court of Appeal below.

FRENCH CJ:   Is that constructional provision good across the range of prerogatives regardless of whether they are powers or property rights?

MR SEXTON:   We would say so, your Honour.  I am not sure that if the cases distinguish between them ‑ ‑ ‑

FRENCH CJ:   Most of the cases, I think, that are cited relate to powers – in this case, executive power.

MR SEXTON:   I have not analysed the cases in that way, but it is put in general terms in those decisions that say, as Barton does, that the prerogative is not to be abrogated except by a very clear and unambiguous provision, and we would say that that certainly has not happened here.  It would seem difficult to say that the 1688 and the 1693 Acts, whatever else might be said about them perhaps – it would be hard to say that they were clear and unambiguous, in view of the debate that has taken place about them so far in the courts below, although as your Honours appreciate it is our contention that the phrase “mines of copper” et cetera, in the 1688 legislation should be given its ordinary English meaning, which would exclude the Cadia Hill mine in this case.

HAYNE J:   Can I just understand better than I presently do how that argument works, Mr Solicitor?  You begin under the Mining Act 1992 with the notion of a publicly owned mineral, is that right?

MR SEXTON:   Yes, your Honour.

HAYNE J:  A mineral owned by or reserved to the Crown.  What do you say is the mineral, or what are the minerals that are owned by or reserved to the Crown?

MR SEXTON:   In this case, your Honour?

HAYNE J:   In this case.

MR SEXTON:   We say that both the gold and the copper are owned by the Crown in this case.

HAYNE J:   Are owned because they were not granted away when the Crown grant was made, or the several Crown grants were made.  Is that right?

MR SEXTON:   And in the case of the copper, because the prerogative attaches the ownership in that as well to the Crown.  If there was simply copper, in the absence of a reservation to the Crown, of course, that would be a privately owned mineral.

HAYNE J:   We understand from what Sir Victor Windeyer said in Wade’s Case that express words are needed to grant a way that which is owned in accordance with the prerogative, is that right?  Therefore, express words are necessary to grant a right to gold, is that right? 

MR SEXTON:   In the absence of an express grant, the gold will still be owned by the Crown.

CRENNAN J:   But the Crown would have the power to grant ownership.

MR SEXTON:   Yes, of the gold as well.

FRENCH CJ:   What is the nature of the Crown’s ownership?  Does it have – if we are talking wastelands of the Crown, we are talking Crown grant which does not convey ownership in gold and mixed minerals.  Does it have anything more than a radical title in the sense explained in Mabo?

MR SEXTON:   I am not sure how the Case of Mines and Mabo can ‑ ‑ ‑

FRENCH CJ:   Well, no, we have moved on from that.

MR SEXTON:   It is not so much a title to the land, your Honour, it is the ownership.

FRENCH CJ:   “Minerals owned or reserved”.  What is the content of the word “owned”?

MR SEXTON:   Well, it is the Crown’s entitlement to those minerals and, I suppose, at the time of the Case of Mines to remove them from the land, that, of course, is no longer so in New South Wales.  So it is an entitlement, I suppose, to the value of the minerals, subject, of course, to the fact that under the royalty provisions of the legislation the value goes to the owner except, of course, in the case of the royalty.  I should say in relation to that ‑ ‑ ‑

FRENCH CJ:   Under the current Mining Act, the first thing that happens in terms of – the first change of status, if you like, in relation to these minerals is upon removal they become under section 11 the property of the person that has removed them.

MR SEXTON:   Prior to that, in the case of publicly owned minerals are owned by the Crown, privately owned minerals by the owner of the land.  I should say in relation to that question – which is certainly referred to in the Case of Mines of the right to remove, in that case, certainly the gold and, as it turned out, both – that my learned friend says that, in a sense, the ownership question under the Case of Mines is so related to that right of removal that when that right is taken away which it has been under the Mining Act 1992, at least of New South Wales, that that affects the ownership question as well. 

I think he puts that as a secondary proposition.  In our submission, the Case of Mines, although it refers to that, it says, we say quite clearly, that in relation to the question of ownership that the gold and in that case the copper as well belonged to the Crown and that was quite separate from the right.  Of course, the right to remove it followed from that.  But, in our submission, the ownership entitlement can certainly survive the loss of the right of removal which is the result of the Mining Act.

I will just take your Honours to one paragraph on that in Hutchinson v Scott (1906) 3 CLR 359. In the judgment of Chief Justice Griffith at page 367 at about point 2 he is quoting, in effect, from Justice North in Morgan about the Case of Mines.  So there are three cases involved here.  He notes that Justice North decided that the Case of Mines said:

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, belong to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with other such incidents –

et cetera.  The first part of the passage, that is, the point about ownership, has never been dissented from.  As to the second part “with liberty to dig and carry away” I know of no instance recorded in which the Crown has exercised that right.  It seems to us that that passage indicates that the ownership question is not decided by the then ability to enter and carry away the gold.

HAYNE J:   Is it relevant to understand the 17th century legislation as fitting into a pattern of legislation of that time designed to encourage local manufacture?  Holdsworth so understands the legislation as having that character.  See volume 5 of the history.  The passages are quite lengthy but they include what appears at 330.

MR SEXTON:   Is this concerning the 1693 or both statutes?

HAYNE J:   What the author says is that:

The metal industry was encouraged by a repeal of the statute of Henry IV.’s reign which made alchemy a felony; and by the definition of what was to be accounted a mine royal, and of the extent of the king’s rights therein.

That sits in the middle of a very lengthy passage in which the author identifies a series of measures taken to encourage what he describes as native manufacturers.

MR SEXTON:   It is hard to see how that question would be influenced by the ownership of the minerals.

HAYNE J:   Why would one give a large understanding to what is not to be capable of exploitation save by the sovereign?

MR SEXTON:   Your Honour, it is exploited by the sovereign, it still presumably results in some kind ‑ ‑ ‑

HAYNE J:   It results in coinage and it results in the remedying of what apparently had been a public scandal towards the end of the reign of Charles about the coinage and the like.

MR SEXTON:   That is certainly that provision ‑ ‑ ‑

HAYNE J:   Associated with permissions to export bullion given in 1663.  We look at these Acts at the moment as though they are concerned and concerned only with questions of royal prerogative as a nice theoretical legal construct.  The legislation was actually sitting into a rather larger pattern I would have thought.

MR SEXTON:   Your Honour, it may be that there is connection between all of those provisions.  It is not entirely obvious, we would say, and it is hard to assess that at the moment.  I do not want to repeat myself, but there was obviously a problem about the Case of Mines and we say that those statutes were designed to address it but not in a way that would substantially affect the prerogative, that is, by ‑ ‑ ‑

HAYNE J:   Statutes were designed to address it against a background of the revolution in which control had passed to the Parliament.  These were

not matters any more for disposition.  Trade and commerce were not matters for disposition at the royal prerogative.  Parliament controlled it.

MR SEXTON:   There are two things we would say about that, your Honour.  One is that the language on its face in the 1688, we would say, when it talks about mines of a particular kind, that it would not extend to this particular case and it would not extend to cases where there is substantial amounts of gold and silver and that the authorities in relation to the prerogative say that it can only be abrogated by clear and unambiguous provisions.  In any event, we say that inasmuch as the provisions are clear, they support out proposition, inasmuch as they are not clear, then they do not satisfy that criteria.  Unless there is any other matter, your Honour, those are our submissions.

FRENCH CJ:   Yes.  Thank you, Mr Solicitor.  Yes, Mr Bannon?

MR BANNON:   Two matters briefly.  So far as my learned friend refers to the need for clarity, if one looks at the expression “mine of copper” one can conceive of three potential candidates; a mine of copper containing no gold whatsoever.  That plainly cannot be the meaning because it was designed to deal with a retraction from the royal prerogative.  At the other end of the spectrum “mine of copper” means a seam of copper or a load of copper with any amount of gold unlimited.  That accords with the words of the section and it serves an obvious intent, admits of no uncertainty, accords with the promotion of trade of mining.  What the State seeks to land on is an expression which still not yet after three hearings has been precisely defined, namely, a mine of copper which is a trace of copper, something above a trace, but not a substantial amount, admits of no definite meaning.  We submit that is the unclearest of all possibilities and one which does not fit in with the historical scheme or the evident purpose of the Act.

Lastly, we did prepare a schedule which is identified by reference to the pages in the appeal book, the certificates of title by reference to the portions.  Each one of the certificates of title contains such reservations as referred to in the Crown grant.  A couple of them also refer to specific reservations in relation to minerals, but they are unrelated to any issue.  Because the certificates of title cover some grants which are not part of the specified land, it is accepted there is nothing in those other reservations which impacts on the consideration of the matter.

I am sorry, I said two things, but thirdly, your Honour Justice Hayne referred to some provisions as to what happens with gold mined from Crown land under the Act.  Justice Hamilton referred in paragraph 13 of the judgment ‑ ‑ ‑

GUMMOW J:   Page?

MR BANNON:   Page 717, to the entitlement to “remove” or “carry away” the gold, going back to the first licence prescribed by regulation on 23 May 1851, which reminds me that we did pursue that issue with some addition of history at that time.  Subject to anything else, those are our submissions, your Honour.

FRENCH CJ:   Yes, thank you, Mr Bannon.  The Court will reserve its decision.  The Court adjourns to 9.30 tomorrow for pronouncement of orders.

AT 2.40 PM THE MATTER WAS ADJOURNED