Cadia Holdings Pty Ltd v State of NSW

[2008] NSWSC 528

CITATION:	Cadia Holdings Pty Ltd v State of NSW [2008] NSWSC 528
HEARING DATE(S):	31 March, 1, 2 & 24 April and 2 May 2008
JUDGMENT DATE :	30 May 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	The copper in dispute is a privately owned mineral.
CATCHWORDS:	MINING LAW [3] – General matters – Minerals and rights thereto – Royal mines.
LEGISLATION CITED:	Gold Fields Management Act 1852 (16 Vic No 43) s 29 Imperial Acts Application Act 1969 Interpretation Act 1978 (UK) s 16 Interpretation Act 1987 s 30 Mining Act 1973 ss 11 & 70(12) Mining Act 1992 ss 3, 5 – 8, 11(1), 68(2), 282, 284 & 379 Royal Mines Act 1688 (Imp) 1 Wm & M c 30 Royal Mines Act 1693 (Imp) 5 Wm & M c 6
CATEGORY:	Principal judgment
CASES CITED:	Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 Attorney-General v Morgan [1891] 1 Ch 423 Barton v The Commonwealth (1974) 131 CLR 477 Bismark Range (Lucknow) Gold Exploration NL v Wentworth (Lucknow) Goldfields NL (1935) 35 SR (NSW) 400 Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408 Bone v Mothershaw [2003] 2 Qd R 600 C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 Commonwealth v Hazeldell Ltd [1921] 2 AC 373; (1921) 29 CLR 448 Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 Heydon’s Case (1584) 3 Co Rep 7a; 76 ER 637 Hypec Electronics Pty Ltd (In Liq) v Registrar-General (2005) 64 NSWLR 679 Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 Marshall v Smith (1907) 4 CLR 1617 Metropolitan Petar v Mitreski [2003] NSWSC 262 Minister for Mineral Resources v Brantag Pty Ltd (1997) 8 BPR 15,815 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Bradley and Lee (1935) 54 CLR 12 Ruddock v Vadarlis (2001) 110 FCR 491 The Case of Mines (The Queen v The Earl of Northumberland) (1568) 1 Plowden 310; 75 ER 472 The Crown v Dalgety and Company Limited (1943) 69 CLR 18 The Ombudsman v Laughton (2005) 64 NSWLR 114 The State of South Australia v The State of Victoria (1911) 12 CLR 667 The Wik Peoples v The State of Queensland (1996) 187 CLR 1 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 Ward v The Queen (1980) 142 CLR 308 Woolworths Limited v Crotty (1942) 66 CLR 603
TEXTS CITED:	1 Blackstone’s Commentaries on the Laws of England (1765) 284 – 285 Law Reform Commission Report on the Application of Imperial Acts LRC 4 Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) [5.17], [5.18]
PARTIES:	Cadia Holdings Pty Ltd (P1) Newcrest Operations Limited (P2) State of New South Wales (D1) Minister for Mineral Resources (D2)
FILE NUMBER(S):	SC 4253/04
COUNSEL:	A J L Bannon SC and R C Scruby (Ps) M G Sexton SC (Solicitor General) and H R Sorensen (Ds)
SOLICITORS:	Gadens Lawyers (Ps) I V Knight, Crown Solicitor (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 30 MAY 2008

4253/04 CADIA HOLDINGS PTY LTD & ANOR v STATE OF NEW SOUTH WALES & ANOR

JUDGMENT

1 HIS HONOUR: This case concerns the entitlement to royalties on copper mined by the first plaintiff at the Cadia Valley Mines near Orange in New South Wales on land owned by the first and second plaintiffs. The dispute is as to whether the copper is owned by the Crown or by the landowner. In either case, the miner must pay royalty to the Minister for Mineral Resources on the copper recovered but, if the copper is owned by the landowner, the Minister must pay seven eighths of the royalty received to the landowner under s 284 of the Mining Act 1992 (“the 1992 Act”). The amount of royalty paid since the commencement of mining that the plaintiffs claim to recover is in the vicinity of $8 million.

2 The first plaintiff relevantly conducts two mines known respectively as Cadia or Cadia Hill (“the Cadia Mine”) and Cadia Extended (“the Cadia Extended Mine”). The whole of the land on which the Cadia Extended Mine is conducted and part of the land on which the Cadia Mine is conducted is the land in which the plaintiffs claim title to the copper (“the relevant land”).

3 The relevant land consists of eleven parcels that are owned by the first and second plaintiffs. The nine original grants by which the present 11 parcels were granted by the Crown were made between 12 April 1852 and 28 November 1881. It is common ground that none of those grants contained a reservation of copper to the Crown. It is equally common ground that the Crown owns the gold in all of those parcels. Mining operations for both copper and gold are being conducted by the first plaintiff under authorities granted under the 1992 Act.

4 The evidence shows that the value of the gold extracted from the Cadia Mine and the Cadia Extended Mine from the time that mining operations began in 1998 until December 2007 exceeds the value of the copper extracted from them, $1.39 billion to $907 million. 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. The evidence also shows that the mines could not be conducted economically to recover gold alone or copper alone. It is to be noted, turning to the annual reports of Newcrest Mining Ltd, the ultimate holding company of both the plaintiffs, that, although the Cadia Valley mining operation was described in some annual reports as a gold mining operation, in the 2003, 2004 and 2005 annual reports the operation was described as a “Gold/Copper Mine”. The 2007 annual report notes that “Cadia Valley is the largest gold and copper mining operation in New South Wales and one of Australia’s largest gold producers.”

5 The Crown claims that, although the copper was not reserved to the Crown in the relevant land grants, ownership of the copper is vested in the Crown pursuant to the Crown’s prerogative right to gold mines or royal mines. For this result it relies on the provisions of the 1992 Act, which it says lead to this conclusion.

6 The provisions of the 1992 Act to which attention needs to be paid are as follows. By s 3 the Act binds the Crown. By s 5 a person must not mine any publicly owned mineral on any land otherwise than in accordance with an authority under the Act. A person must not mine any privately owned mineral on any land over which some other person is the holder of or applicant for an authority: ss 6 and 7. A person (including the land and mineral owner) must not mine any privately owned mineral unless that person has given notice of intention to do so to the Director General of Mineral Resources and has provided security as required: s 8.

7 Section 11(1) of the 1992 Act provides as follows:

“11(1) For the purposes of this or any other Act or law, it is declared that any mineral that is lawfully mined becomes the property of the person by or on behalf of whom it is mined at the time the material from which it is recovered is severed from the land from which it is mined.”

8 A mining lease may be granted over land of any title or tenure and in respect of any mineral or minerals regardless of whether the mineral or minerals are publicly owned or privately owned: s 68(2). As to royalties, the relevant provisions are as follows:

“282 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.

…………..

284 Liability to pay royalty

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

(2) If royalty (including any interest on royalty) is paid to or recovered by the Minister in respect of a privately owned mineral, the Minister is to pay:
(a) seven-eighths of the amount so paid or recovered to the owner of the mineral, and
(b) one-eighth of the amount so paid or recovered to the Treasurer for payment into the Consolidated Fund.”

9 Section 379 provides as follows:

“379 Saving of royal prerogative

Except as expressly provided by this Act, this Act does not affect any prerogative of the Crown in respect of gold mines and silver mines.”

10 In the Dictionary of the 1992 Act, “privately owned mineral” means a mineral that is not owned by, or reserved to, the Crown and “publicly owned mineral” means a mineral that is owned by, or reserved to, the Crown.

11 There has been a long history of mining legislation in New South Wales since the beginning of the Gold Rushes. This was usefully summarised by Windeyer J in Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 186 - 188. This history commenced with the Proclamation of Governor Fitz Roy of 22 May 1851 to the effect that all persons who mined any gold without due authority would be prosecuted both criminally and civilly. A Regulation of 23 May 1851 provided for the issue of gold licenses permitting the “licensee to dig, search for, and remove Gold” from Crown lands within the County of Bathurst. The first statute on the subject was the Gold Fields Management Act 1852 (16 Vic No 43). That Act by s 29 provided:

“29 This Act shall not be deemed to abridge or control the prerogative rights and powers of Her Majesty the Queen in respect of Gold Mines and Gold Fields of New South Wales …”

12 It is to be noted that s 379 of the 1992 Act is in form virtually identical with this section and all intervening mining Acts have contained a similar provision. Authorities to mine in private land could not be granted under the mining Acts until 1894. Thereafter leases were granted by the Crown separately and under separate provisions in respect of Crown Lands and private lands until the Mining Act 1973 (see s 11), when the transition was made to a single form of lease over land of whatever title, which provision is maintained in s 68 of the 1992 Act.

13 From the very beginning, authorities to mine granted by the Crown have conferred the right not only to mine for the specified mineral but to treat it as the miner’s own property. Thus, the licence prescribed by Regulation on 23 May 1851 permitted the holder not only to mine the gold but also to “remove” it, a word echoing the words “and carry away” by which grants of profits a prendre traditionally indicated that title in the severed material passed to the licensee. Furthermore, to any extent that subsequent forms of authority did not contain express words authorising removal (and some did and some did not), there was a necessary implication from the grant of the authority that the material mined could be treated by the miner as the miner’s property; it would obviously be pointless for a miner to mine under an authority granted, if the miner did not obtain title to the product mined. I make the above remarks as background to s 11 of the 1992 Act because, despite the long history of mining legislation, no mining Act before 1992 contained a similar provision; until then there was no express provision in legislation for the passing of title in the mineral recovered.

14 In the second reading speech relating to the 1992 Act the Minister for Natural Resources, Mr Causley, gave the following reason for the introduction of s 11:

“The bill has been further reviewed by the New South Wales Coal Association and the Chamber of Mines Metals and Extractive Industries (NSW), and many of the suggestions of those industry bodies have now been incorporated. The chamber, on the advice of its legal advisers, Mallesons, submitted that the bill should contain a provision precisely stating when property in minerals passes to a miner. Similar provisions are contained in recent Victorian and Queensland legislation. The chamber believes that lack of such a provision in this bill could create difficulty in some joint ventures where foreign investment is sought. The Government is keen to encourage investment in mining in this State and has agreed to the chamber’s request in this regard. Clause 11 of the bill proposes that any lawfully mined mineral becomes the property of the miner when the material from which it is recovered is severed from the land, that is, at the time it is dug from the ground.” (p 2492, Hansard, Legislative Assembly, 9 April 1992)

It appears from this that the legislature in passing the 1992 Act assumed that title to the severed mineral passed to the miner, but then defined precisely the time of the passing of property for the reasons stated.

15 There have always been separate bodies of law in New South Wales governing authorities to mine minerals on the one hand and the title to minerals contained in land on the other. The law relating to the authority to recover minerals has been contained in the mining legislation, some reference to which has been made above. The law relating to mineral ownership has been governed by the common law and by Crown Lands statutes relating to the grant to private individuals of Crown Lands in New South Wales. The definition of “minerals” for the purposes of these two bodies of law has generally been different.

16 The Crown bases its claim to ownership of the copper in the relevant land on the royal prerogative in respect of gold mines or royal mines. This prerogative, it is said, relevantly exists, and is maintained by s 379 of the 1992 Act in full force, except for the modification by the Royal Mines Acts to which reference is made below.

17 It is in the above context of facts and legislative provisions that I proceed to determine the Crown’s claim. The steps by which I proceed to a conclusion are contained in 11 propositions, which I set out as follows:

(1) By The Case of Mines (The Queen v The Earl of Northumberland) (1568) 1 Plowden 310; 75 ER 472, the royal prerogative in respect of gold mines has two aspects. The first is that gold belongs to the Crown and that a grant of land containing gold will not convey the gold to the subject unless there is a specific grant or conveyance of the gold. The second aspect is that the Crown has the right to enter the land of the subject to dig and carry away the ore of gold. If the ore also contains copper and the Crown cannot extract the gold from the ore “without melting the copper”, then the copper also is the property of the Crown.

(2) By 1 Wm & M c 30 (“the 1688 Act”) it was provided that no mine of copper shall be taken to be a royal mine although gold or silver may be extracted out of the same.

(3) By 5 Wm & M c 6 (“the 1693 Act”) it was enacted that the proprietor of any mine in which there is copper may hold and work the mine notwithstanding that the mine may be claimed to be a royal mine. The 1688 Act and the 1693 Act are together referred to as “the Royal Mines Acts”.

(4) In Attorney-General v Morgan [1891] 1 Ch 423 it was held that the relaxation in favour of the subject of the royal prerogative with respect to royal mines effected by the Royal Mines Acts does not apply to a mine that is worked only as a gold mine, even though the mine contains quantities of copper so small as to be valueless for the purpose of working.

(5) The Royal Mines Acts were taken to apply in New South Wales. By the Imperial Acts Application Act 1969 (“the IAAA”), the 1688 Act continued to be in force but the 1693 Act was repealed.

(6) The royal prerogative may be abrogated by statute.

(7) The royal prerogative in gold mines has been preserved in New South Wales by statutes from the first Act relating to mining up to and including s 379 of the 1992 Act. However, the aspect of the prerogative which permitted the Crown to go on to the subject’s land and mine ore containing gold, even if it contained copper, has been abrogated by statute; that abrogation is clearly effected in the 1992 Act. But it is equally clear that the prerogative continues to exist in so far as it relates to the Crown’s ownership of gold and the interpretation of land grants.

(8) The point of time at which the determination of mineral ownership must be made in relation to lands granted by the Crown to the subject is the date of the grant of the land away from the Crown . In this case, the relevant grants were made between 1852 and 1881, at which time the 1693 Act was in force. The grants were made without reservation of copper.

(9) The question is whether the grants passed the ownership of the copper to the grantee or whether, by operation of the royal prerogative, the copper that was intermingled in the ore with the gold, so that the gold could not be extracted without extraction of the copper, the copper was owned by the Crown. The answer to that question turns upon the true interpretation of the 1688 Act and the 1693 Act (so far as the latter is relevant).

(10) Statutes should be given a purposive construction and this applies to Imperial statutes still in force in New South Wales.

(11) In light of the foregoing, mines of gold and mines of copper should not be construed for the purposes of the 1688 Act (nor the 1693 Act, in so far as it is relevant) as mutually exclusive categories. On the facts of this case, the subject mines should be categorised as mines of copper as well as mines of gold. As they are to be characterised as mines of copper, by the operation of the 1688 Act at the time of the grants, the copper is owned by the grantee, not by the Crown.

I shall proceed to restate and discuss each of those 11 steps.

(1) By The Case of Mines (The Queen v The Earl of Northumberland) (1568) 1 Plowden 310; 75 ER 472, the royal prerogative in respect of gold mines has two aspects. The first is that gold belongs to the Crown and that a grant of land containing gold will not convey the gold to the subject unless there is a specific grant or conveyance of the gold. The second aspect is that the Crown has the right to enter the land of the subject to dig and carry away the ore of gold. If the ore also contains copper and the Crown cannot extract the gold from the ore “without melting the copper”, then the copper also is the property of the Crown.

18 The classic exposition of the prerogative in relation to royal mines is found in The Case of Mines. That case was decided in the Exchequer Chamber before all 12 Judges and Barons of the Exchequer. In the report, the decision is recorded as follows (Plowden at 336; ER at 510 - 511):

“First, all the justices and Barons agreed, 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 thereto as are necessary to be used for the getting of the ore.

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 copper or other 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. But all the other Justices and Barons of the Exchequer unanimously agreed, 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 mine royal, for the records don’t make any distinction herein, but they are general, and prove that all ores or mines of copper, or other base metal, containing or bearing gold or silver belong to the King.”

19 Another important submission was put on the Queen’s behalf in The Case of Mines Plowden at 323; ER at 492 as follows:

“… 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 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, 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, for the charge of purging and melting it is greater perhaps than that of the digging. And if the Queen should be at such charge, and the law should make her deliver it to the possessor of the soil, therein the law would lay a heavy burden and expence upon her, who ought rather to abound in riches for the safeguard of her subjects, than to want them. And also by this means the law would make the Queen a servant to the subject to melt his copper for him, which would be a very unwise and unreasonable law. 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, which is less worthy … So that the Queen being possessor of the one shall be possessor of the other”.

The report records that a majority of the Court found in favour of the Queen on this submission. Although the reporter was not present in Court on that occasion, he records the version of the Judges’ reasons given by counsel who were present: Plowden at 336; ER at 510 - 511.

20 It is important to remember the context in which that case was decided. The Queen had entered on lands of the Earl of Northumberland, was mining large quantities of ore containing both gold (which undoubtedly belonged to her) and copper (which was claimed by the Earl) and treating both metals as her property.

21 It is also important to remember that the word “mine” was used in The Case of Mines to refer to two quite separate subject matters. In the first place, it was used, in effect, as a synonym of vein, lode or ore, referring to the body of material in the ground containing the mineral. In the second place, it was used in the case of an open mine to refer to the location where a mineral is recovered. This ambiguous usage has continued since that time. It is repeated in the Royal Mines Acts; in provisions saving the royal prerogative, such as s 379 of the 1992 Act; and in general usage. The ambiguous usage is referred to by Windeyer J in Wade at 194 - 195.

22 The obvious discouragement, by the royal prerogative as delineated in The Case of Mines, of mining by owners of private minerals that contained any quantity, however small, of gold or silver, with the result that the other minerals also belonged to the Crown, led to the passage in the late 17th century, of the Royal Mines Acts.

(2) By the 1688 Act it was provided that no mine of copper shall be taken to be a royal mine although gold or silver may be extracted out of the same.

23 The 1688 Act by s 3 (sometimes referred to as s 4) provided:

“… that no mine of copper, tin, iron, or lead, shall hereafter be adjudged, reputed or taken to be a Royal mine, although gold or silver may be extracted out of the same.”

(3) By the 1693 Act it was enacted that the proprietor of any mine in which there is copper may hold and work the mine notwithstanding that the mine may be claimed to be a royal mine.

24 The 1688 Act still left uncertainties, particularly as to the meaning of “mine of copper”, etc, that soon led to the passage of the 1693 Act. That Act provided as follows:

“Sect 1: ‘But notwithstanding the good provision by the said statute to prevent the discouraging their Majesties’ good subjects who have mines of copper, tin, iron, or lead in their soils, from digging and opening the same, many doubts and questions have arisen upon the said statute, whereby great suits and troubles have arisen to many owners and proprietors of such mines; wherefore, for the better explanation of the said statute;’

Sect 2: ‘Be it enacted, &c, that all and any person or persons, being subjects of the Crown of England, bodies politic or corporate, that now are or hereinafter shall be the owner or owners, proprietor or proprietors, of any mine or mines within the kingdom of England, dominion of Wales, or town of Berwick-upon-Tweed, wherein any ore now is, or hereafter shall be discovered, opened, found, or wrought, and in which there is copper, tin, iron, or lead, shall and may hold and enjoy the same mine or mines and ore, and continue in the possession thereof, and dig and work the said mine or mines or ore, notwithstanding that such mine or mines or ore shall be pretended or claimed to be a Royal mine or Royal mines; any law, usage, or custom to the contrary notwithstanding’.

Sect 3: ‘Provided always, that their Majesties, their heirs and successors, and all claiming any Royal mines under them, shall and may have the ore of any such mine or mines in any part of the said kingdom of England, dominion of Wales, or town of Berwick-upon-Tweed (other than tin ore in the counties of Devon and Cornwall), paying to the proprietors or owners of the said mine or mines wherein such ore is or shall be found within thirty days after the said ore is or shall be raised and laid upon the banks of the said mine or mines, and before the same be removed from thence, the rates following (that is to say), for all ore washt, made clean and merchantable, wherein is copper, the rate of £16 per ton; and for all ore washt, made clean, and merchantable, wherein there is tin, the rate of 40s per ton; and for all ore washt, made clean, and merchantable, wherein there is iron, the rate of 40s per ton; and for all ore washt, made clean, and merchantable, wherein there is lead, the rate of £9 per ton . And in default of payment of such respective sums as aforesaid, it shall and may be lawful for the owners and proprietors of the said mine or mines, wherein such ore is, are, or shall be found, to sell and dispose of the said ore to his and their own uses; any law, statute, or custom to the contrary notwithstanding.’”

25 The situation was summarised as follows in 1 Blackstone’s Commentaries on the Laws of England (1765) at 284 – 285:

“XII A TWELFTH branch of royal revenue, the right to mines, has it’s [sic] original from the king’s prerogative of coinage, in order to supply him with materials: and therefore those mines, which are properly royal, and to which the king is entitled when found, are only those of silver and gold. By the old common law, if gold or silver be found in mines of base metal, according to the opinion of some the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of base metal. But now by the statutes I W & M st I C 30 and 5 W & M C 6 this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities: but that the king, or persons claiming royal mines under his authority, may have the ore, (other than tin-ore in the counties of Devon and Cornwall) paying for the same a price stated in the act. This was an extremely reasonable law: for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled.”

(4) In Attorney-General v Morgan it was held that the relaxation in favour of the subject of the royal prerogative with respect to royal mines effected by the Royal Mines Acts does not apply to a mine that is worked only as a gold mine, even though the mine contains quantities of copper so small as to be valueless for the purpose of working.

26 Attorney-General v Morgan seems to be the only authority in which there is any useful discussion of the meaning of the Royal Mines Acts. It is a decision of North J and on appeal to the Court of Appeal. The point actually decided in that case is limited. Again, it is important to bear in mind the factual context in which the case was decided. There, the owner of a mine who was working it only for gold, although the ore contained valueless traces of base metals, sought under the Royal Mines Acts to appropriate the gold as his own property, paying the Crown only a royalty in respect of it. The mine was not being worked under any authority corresponding with authorities under the New South Wales mining legislation.

27 The trial Judge, North J, said at 442 - 443:

“ In the result, it is quite clear that there has not been, and is not, any mining or working for lead, copper, or iron: and that none of those metals has been obtained, except in such very small quantities as to be entirely without value. And this agrees entirely with the returns made (for totally different purposes) under the Metalliferous Mines Regulation Acts, which, for the years 1887, 1888, and 1889, shew the quantity of ‘gold ore’ got, but do not make any return of copper, iron, or lead ores at all.

Upon these facts I have no difficulty in coming to the conclusion that the mine on the Gwynfynydd farm is a gold mine and nothing else. The Defendant himself paid a royalty to the Crown for working it; he sold it as a gold mine to the company he promoted to purchase it; the company so formed to buy and work it was called the Morgan Gold Mining Company ; it has worked for gold alone, and has paid royalty thereon, and has sold gold only; and has, in fact, found nothing else, except in such small quantities as above mentioned. The suggestion that the mine is worked for other minerals as well as gold is a fiction.”

His Lordship further said at 448:

“The allegation that the mine or ore is Royal is not to prevent the working, whether such allegation be well founded or not. If on subsequent working it turns out that the mine or ore does not contain gold or silver, then the Crown’s claim has no foundation, and the subject’s right to work it is clear; in that case no protection is required and the Act does not confer any. The Act only applies to cases in which gold or silver does exist in the mine or ore worked, and in such cases protection is conferred upon persons working under that section. The title to the Act bears out this view, as it refers to disputes and controversies concerning Royal mines, not concerning mines found not to be Royal. The words of the Act are: ‘The owner or proprietor of any mine wherein any ore shall be discovered, opened, found, or wrought, and in which there is copper, iron, tin, or lead.’ No ore not containing one of those four named metals is within this Act at all, whether such ore be gold, or silver, or zinc, or other base metal. Suppose, however, that with the gold ore or zinc ore some copper, iron, or lead is found, but merely in such trivial quantities as not to be worth working, are these Acts intended to apply to such a case? For the existence of those metals under such circumstances would not make the mine a copper, iron, or lead mine, or bring its proprietor among the class of persons intended to be benefited by the Acts - the mine would be called a gold or zinc mine and nothing else.”

28 In the Court of Appeal Kay LJ said at 462 - 463:

“The first question is the grammatical construction of these Acts, and especially the 5 Wm & M c 6. It seems to me reasonably clear that the first Act (1 Wm & M c 30) was only passed to encourage mining for the base metals therein particularly mentioned, and does not refer to a mine which is worked for gold, although such mine may contain a certain quantity of such base metals, or of some of them. The second statute (5 Wm & M c 6) 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. I do not think, if the Defendant’s figures be right, that this grammatical construction is displaced. It only comes to this - the Crown has put such a price upon the ore as makes it certain that a man may safely mine for copper, tin, iron, and lead without danger of interference, unless it contains a very large proportion of gold. It does not follow that he may work a mine for gold, because there is with the gold a small quantity of copper, tin, iron, or lead. The Acts are dealing, not with gold mines, but with mines of copper, tin, iron, and lead only. What is such a mine is not determined by them, and there may, doubtless, be imagined a case where the yield was such that the value of the gold and copper per ton of ore was nearly the same, and where it would not pay to work the mines for one of these metals without the other, and it might be difficult in such a case to say whether the mine should be called a copper mine or a gold mine. Probably any Court before which the question came would be inclined to give the mine-owner the benefit of such a doubt. The case, however, with which we have to deal raises no such difficulty. The value of the base metals in this mine is quite inconsiderable. The mine is worked for nothing but gold. In the quartz rock containing the gold, and, it may be, in combination with the gold to some degree, there are lead and copper, and, perhaps, other base metals; but the mine is not worked for the purpose of recovering any of these, nor, according to the evidence, could it be profitably worked for such purpose. It is to all intents and purposes a gold mine, and worked as such. Such a mine is, in my opinion, a Royal mine, and is not affected by any of these statutes, and, accordingly, the Defendant has from the first been in the wrong. The decision of the learned Judge against him was right upon this point, and the appeal must be dismissed with costs.”

This indicated both the reasons for the Court of Appeal’s confirmation of North J’s decision and what is left uncertain by the decision of that case. See also per Lindley LJ at 456 and per Lopes LJ at 459.

29 As I have already said, the point decided by that case is quite limited. It is that, if a mine is worked only for gold, albeit the mine contains traces of the specified metals which are not recovered and are of no commercial value, the mine cannot be characterised as a “mine of copper”, etc, so as to attract the protection of the 1688 Act. It is clear that, for a mine to be a mine of copper, etc, the deposit must contain copper in such quantities as will be recovered on mining or, if the deposit is actually being worked, copper, etc is actually recovered from the mine. Judicial remarks as to the amount of copper which must be recovered and its proportionality to the amount of gold contained in the ore or recovered from the mine for the mine to be characterised as a “mine of copper”, etc are obiter dicta, completely speculative and not necessary for the decision of the case. In this case, these questions remain entirely at large to be determined on the proper construction of the legislation as it stands, or as it stood at the relevant time and without the aid of any authoritative judicial decision.

(5) The Royal Mines Acts were taken to apply in New South Wales. By the IAAA, the 1688 Act continued to be in force but the 1693 Act was repealed.

30 The Royal Mines Acts were among the Imperial Acts taken to apply in New South Wales, but they suffered different fates when the application of Imperial Acts in New South Wales was regulated by the IAAA. As is well known, as a result of the Law Reform Commission Report on the Application of Imperial Acts LRC 4 (“LRC 4”) and the IAAA, in general terms, only Imperial statutes of constitutional importance were maintained in force in New South Wales. Acts that were obsolete were simply repealed and other Acts, which had some continuing application, were repealed but replaced by re-enacted provisions contained in the IAAA.

31 The 1688 Act was maintained in force. The reason was stated as follows in LRC 4 at 60:

“… this Act was passed to resolve doubt 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.”

Concerning the 1693 Act, LRC 4 at 100 – 101 refers to the fact that it was passed for the better explanation of the 1688 Act. LRC 4 refers to the exposition of the situation in Attorney-General v Morgan and refers to the option given to the Crown to take the ore at specified prices. LRC 4 then states, “This Act is superseded by the Mining Act 1906–1964 (cf s 70(12)) and is obsolete and unnecessary”. The 1693 Act was therefore repealed.

32 Whether or not the 1688 Act applied only to mines containing “traces of gold and silver” and whether the 1693 Act was wholly unnecessary are moot points. The reference to s 70(12) of the 1906 Act, as in force in 1969, was not wholly apposite, since that subsection applied only to a situation where the mining was being carried out, not under a statutory mining lease, but by the owner of privately owned minerals or some other person with the agreement of the owner. Further analysis of the effect of that provision is unnecessary, as it was repealed in 1973. The 1693 Act had by then been totally repealed by the IAAA, effective in 1971. The 1992 Act contains no provision corresponding with s 70(12). Neither side has put any submission that the result of this case is affected by the terms or by the repeal of s 70 of the 1906 Act.

(6) The prerogative may undoubtedly be abrogated by statute.

33 A prerogative of the Crown may be abrogated by statute by express words or by necessary implication: Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 per Lord Dunedin at 526, 528 and per Lord Atkinson at 538, 539 and Barton v The Commonwealth (1974) 131 CLR 477 per Mason J at 501 (and see per Barwick CJ at 488); see also R v Bradley and Lee (1935) 54 CLR 12 per Latham CJ at 17 - 18; Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 per Evatt J at 323; The Wik Peoples v The State of Queensland (1996) 187 CLR 1 per Toohey J at 108 - 110, per Gaudron J at 140, per Gummow J at 168, 173 - 174 and per Kirby J at 243; Ruddock v Vadarlis (2001) 110 FCR 491 per Black CJ at [33] – [41]; and Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 per McHugh, Gummow and Hayne JJ at [85].

34 The defendants submitted that there is a special rule that, unlike other repealed material, abrogated prerogative is in abeyance only, so that it will revive upon repeal of the abrogating statute in a way in which other repealed matters will not. Something further will be said about this at [69] below.

(7) The royal prerogative in gold mines has been preserved in New South Wales by statutes from the first Act relating to mining up to and including s 379 of the 1992 Act. However, the aspect of the prerogative which permitted the Crown to go on to the subject’s land and mine ore containing gold, even if it contained copper, has been abrogated by statute; that abrogation is clearly effected by the 1992 Act. But it is equally clear that the prerogative continues to exist in so far as it relates to the Crown’s ownership of gold and the interpretation of land grants.

35 This proposition deals with the question of the degree to which the prerogative has in fact been displaced or abrogated by statute and the degree to which it remains in force in New South Wales.

36 The prerogative at the time of The Case of Mines had at least two important aspects. The first aspect was that ownership of the royal minerals in the ground was vested in the Crown and that the presumption of Crown ownership was so strong that a grant of land without a specific grant of gold would not divest from the Crown the ownership of the gold.

37 The second aspect was that the prerogative conferred on the Crown the right to enter upon the land of the subject and mine and remove the gold, taking with it any other minerals that were intermixed with the gold in the ore extracted. When the gold and minerals were recovered from the ore by the Crown, there vested in the Crown the ownership, not only of the gold but of the other minerals extracted in the refining process.

38 There is no doubt that the prerogative continues to exist to the extent of vesting in the Crown all gold in land in New South Wales, unless it has been expressly and specifically conveyed away. That aspect of the prerogative persists in full force. 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 in New South Wales. Turning to the 1992 Act, that Act by s 5 forbids the extraction of publicly owned minerals by any person except pursuant to an authority under the Act. By s 21 of the Interpretation Act 1987, in any Act “person includes an individual, a corporation and a body corporate or politic.” By s 3, the 1992 Act binds the Crown. Therefore there is a prohibition on the mining of gold by or on behalf of the Crown except pursuant to an authority. The prerogative right to enter on land of the subject and mine for gold must be taken to be abrogated by this provision.

(8) The point of time at which the determination of mineral ownership must be made in relation to lands granted by the Crown to the subject is the date of the grant of the land away from the Crown. In this case, the relevant grants were made between 1852 and 1881, at which time the 1693 Act was in force. The grants were made without reservation of copper.

39 The point of time at which the determination of mineral ownership must be made is the date of the grant of the land away from the Crown: see the decisions of the Privy Council in Commonwealth v Hazeldell Ltd [1921] 2 AC 373; (1921) 29 CLR 448 and of the Court of Appeal in Minister for Mineral Resources v Brantag Pty Ltd (1997) 8 BPR 15,815.

(9) The question is whether the grants passed the ownership of the copper to the grantee or whether, by operation of the royal prerogative, the copper that was intermingled in the ore with the gold, so that the gold could not be extracted without extraction of the copper, was owned by the Crown. The answer to that question turns upon the true interpretation of the 1688 Act and the 1693 Act (so far as the latter is relevant).

40 Both parties regard the central question in these proceedings as whether or not the royal prerogative relating to the ownership of base metals contained in ore which also contains gold or silver is abrogated by the 1688 Act or whether it is in fact not dealt with by that Act, so that ownership of the copper in the relevant land is vested in the Crown. Both sides proceeded on the basis that this depends upon whether either the ore body at Cadia generally or, specifically, the ore body contained in the relevant land, is to be characterised as a “mine of copper” within the meaning of the 1688 Act. If, on the proper construction of s 3 of that Act, it is a “mine of copper” within the meaning of that section, then it is removed from characterisation as a royal mine and the copper is owned by the landowner as was the plaintiffs’ contention. The defendants on the other hand contended that the relevant mine could not be characterised as a “mine of copper” within the meaning of the 1688 Act. They further contended that the 1688 Act alone could not have that effect without the operation of the 1693 Act.

41 The defendants submitted that the mine in the relevant land cannot be characterised as a “mine of copper” for five reasons.

42 The first reason was that the value of the gold extracted is significantly greater than the value of the copper extracted. They concede that the “mine might be characterised as a gold and copper mine or as a copper and gold mine” but assert that “it could not be characterised as a ‘mine of copper’”.

43 Secondly, they relied upon the evidence that the Cadia mines (and the relevant deposit) are not likely to be viable at any time to be worked for either gold or copper alone. They submitted that it “is difficult to see how a mine could ever be considered a ‘mine of copper’ when it could never be operated economically for that metal alone”.

44 Thirdly, they submitted that it is preferable to adopt an approach that offers the greatest likelihood that the nature of the mine will remain settled over its projected lifetime. They said that this is more likely if it is characterised as a gold mine.

45 Fourthly, they said that the construction of s 3 of the 1688 Act that they contend for is reinforced by the relevant terms of the 1693 Act. They said that it is the assumption of both of the Royal Mines Acts that their operation should be confined to a predominantly base metal mine, the operation of which would be frustrated by the inclusion of even small amounts of gold or silver.

46 Fifthly, they said that the construction contended for is consistent with the plaintiffs’ own description of the mine as set out in [4] above. They said that the descriptions used do not include the simple description “copper mine”, although they concede that the term “Gold/Copper Mine” is used and the mine is referred to as a “gold and copper mining operation”.

47 The plaintiffs on the other hand submitted that the Cadia Valley operations and deposits are not in any event “mines of gold” but are “mines of copper”. They said that s 379 of the 1992 Act purports to preserve the royal prerogative in relation to “mines of gold” and that s 3 of the 1688 Act has the effect that the royal prerogative does not extend to copper in a “mine of copper”. If the ore bodies in the relevant land are not “mines of gold” or are “mines of copper” within the meaning of the 1688 Act, then the Crown’s assertion of ownership by prerogative of the relevant copper is misplaced. They submitted that whether a mine is a “mine of copper” or a “mine of gold” is a question of characterisation. In relation to that characterisation, they relied, in the absence of authoritative judicial statement, on the dicta of Kay LJ in Attorney-General v Morgan in the passage set out above at [28]. They said that where the amount of copper extracted (and contained in the ore before extraction) is neither non existent nor negligible, but is considerable, as in this case, it is not established that the mines are mines of gold in the requisite sense. Furthermore, they are to be characterised as mines of copper, giving the owners of the copper the benefit of the doubt to which Kay LJ suggested they are entitled.

(10) Statutes should be given a purposive construction and this applies to Imperial statutes still in force in New South Wales.

48 This rule finds its origin in the principle in Heydon’s Case (1584) 3 Co Rep 7a; 76 ER 637 that, where in an Act the legislature has stated the mischief which the Act is intended to remedy, consideration of the nature and extent of that mischief is relevant to the interpretation of the Act: see Woolworths Limited v Crotty (1942) 66 CLR 603 per Latham CJ at 618; Ward v The Queen (1980) 142 CLR 308 per Stephen J at 332.

49 The modern rules as to the interpretation of statutes were stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 by McHugh, Gummow, Kirby and Hayne JJ at 381 – 382 as follows:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute ( Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’ ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, ‘in the context of the legislation read as a whole’). In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J).

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ( Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’ ( Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.”

50 See also The Ombudsman v Laughton (2005) 64 NSWLR 114, where Spigelman CJ said at [24], [25]:

“I agree with the Chief Justice of Israel who rejected the proposition that the canons or maxims of interpretation are legal norms and said:

‘The canons reflect semantic rules, not legal rules. They are not unique to law but rather are rules of general applicability for understanding language. They are common to all legal systems and systems of interpretation. They belong to the field of language. They help determine the range of a legal text’s semantic possibilities. They determine the meaning that the text is capable of bearing. They do not determine the legal meaning that the text bears.’ (Aharon Barak, Purposive Interpretation in Law (2005) at 107.)

To determine the legal meaning it is necessary to adopt a purposive interpretation. The purpose of s 35A is to protect from challenge the substantive conduct of the Ombudsman, namely the investigations and reports and other such functions for which the Ombudsman Act and other Acts provide. The words “executing (an) Act” do not necessarily extend to the performance of any statutory function or the exercise of any statutory power. They may not encompass matters of internal administration such as employment of staff.”

And see Interpretation Act 1987 s 33.

51 It is apparent from Ward v The Queen supra that the Courts approach the interpretation of Imperial Acts in so far as they affect Australia in the same manner as they approach local Acts.

(11) In light of the foregoing, mines of gold and mines of copper should not be construed for the purposes of the 1688 Act (nor the 1693 Act, in so far as it is relevant) as mutually exclusive categories. On the facts of this case, the subject mines should be categorised as mines of copper as well as mines of gold. As they are to be characterised as mines of copper, by the operation of the 1688 Act at the time of the grants, the copper is owned by the grantee, not by the Crown.

52 Ultimately, the categorisation of the mines must be made upon the true construction of the Royal Mines Acts in light of their purpose. There is no doubt from what has been set out in [24] and [25] above that the purpose of the 1688 Act was to remove the Crown’s prerogative right to the specified metals where the subject would be discouraged from working deposits of them because they also contained royal metals. It is to be borne in mind that, at that time, the Crown’s prerogative rights included the right to enter and mine on the subject’s land for gold and any other metal intermixed with it in the ore. That aspect of the prerogative destroyed entirely the right the subject would otherwise have had to the other metal. It was this that discouraged the subject from revealing or working mines of copper, etc where any amount of gold was mixed with the other metal. It is clear that the purpose of the 1688 Act was to permit and encourage the owner of the specified metal to reveal and operate the mine, certainly when the specified metal was of considerable value, as in the present case.

53 It is true that it was decided in Attorney-General v Morgan that the Royal Mines Acts did not operate to characterise a mine as a “mine of copper”, etc where the specified mineral was not extracted from the mine and was commercially valueless. However, that is not the present case.

54 When it was thought that the 1688 Act left the ambit of “mines of copper”, etc uncertain, the 1693 Act proceeded to enact “for the better explanation of the said statute” that the mines entitled to the benefit of the 1688 Act were all mines in which there was any amount of copper, etc. After the enactment of this explanatory matter, the 1693 Act proceeded to protect the Crown’s rights through the grant of the option to acquire the extracted material, so long as the 1693 Act was in force. In my view the 1693 Act manifested the same purpose as I have found manifested in the 1688 Act.

55 The expression “mines of copper”, etc in the 1688 Act ought be given the interpretation that best effects this purpose, that is, the purpose of encouraging the working of deposits containing substantial amounts of copper.

56 On the face of the 1688 Act and bearing in mind its purpose as I have found it, I am of the view that there is a fallacy that runs through the defendants’ submissions. That fallacy is that a “mine of gold” and a “mine of copper” are mutually exclusive characterisations: that is, that a mine must be either the one or the other and cannot be both. Whilst it cannot be of itself determinative of the question, it is significant that in the recent annual reports of the plaintiffs’ holding company the mine is described as a “Gold/Copper Mine” and its operations are described as a “gold and copper mining operation”. The mines are viable when both metals are extracted from the ore, although they would not be viable if both metals were not extracted. The copper in the ore cannot be extracted without the gold and vice versa. It seems to me that this points to the mine being characterised for relevant purposes as both a gold mine and a copper mine.

57 I should add that it certainly seems to me that it would fly in the face of reality to decline the mine the characterisation of a “copper mine” when some 248,000 tonnes of copper metal have been extracted from the Cadia mines during their lifetime, including some 125,000 tonnes from the relevant land, and that the mines would not have been viable had this metal not been extracted, even though gold of a higher value was extracted in the same operation.

58 The passages from annual reports cited above indicate that there is no difficulty in ordinary language in a mine or operation being characterised as a mine or operation for both copper and gold. Nor is there any principle of statutory interpretation that I am aware of that would require “mine of gold” and “mine of copper” in the statute to be interpreted as mutually exclusive characterisations.

59 I do not agree with the defendants’ assertion that there is a third class of mine, namely a “gold and copper mine” and that the 1688 Act does not apply if the mine falls within that third and separate category. In my view, a mine which is both a copper mine and a gold mine is not to be regarded as constituting some third class of mine, which is not mentioned in the Royal Mines Acts. But because I am of the view that “mine of gold” and “mine of copper” are not mutually exclusive categories, a mine can be characterised as both a “mine of gold” and a “mine of copper” within the meaning of the Royal Mines Acts. Once the mine can properly be characterised within the Acts as a “mine of copper”, then the Acts operate in relation to it, albeit the mine can also be correctly characterised as a “mine of gold”. In my view, these separate characterisations are not prevented by the fact that the mine would not be commercially viable for the extraction of one of the metals without the extraction of the other.

60 I am therefore of the view that a mine may be characterised under the 1688 Act as a “mine of copper” as well as a “mine of gold” and that the subject mine should be characterised as a “mine of copper”.

61 By reason of the view I have expressed in [60] above, I am of the view that the ownership of the copper was assured to the plaintiffs by the 1688 Act at the time of the land grants. I should come to this conclusion on the basis of the 1688 Act alone, if the 1693 Act had not been in force. However, the result was reinforced by the 1693 Act, which was in fact in force at the time. The subsequent repeal of the 1693 Act did not alter the ownership of the copper.

62 For these reasons, the mine cannot now be characterised as a “mine of gold” within the meaning attributed to that expression in The Case of Mines, so as to entitle the Crown to the whole product of the mine.

63 In addition to its contentions set out above, the defendants contended that, if my opinion is correct as to the effect of the Royal Mines Acts at the time of the grants, that effect changed, either upon the repeal of the 1693 Act in 1971 or upon the enactment of s 379 of the 1992 Act; that is, if the mine were a “mine of copper” at the time of the land grants it ceased to be a “mine of copper” and reverted to be a “mine of gold” or a royal mine by the revived operation of the royal prerogative upon the repeal of the 1693 Act or the enactment of s 379.

64 To this contention there are two answers. The first is, that neither the repeal of the 1693 Act in 1971 nor the enactment of s 379 of the 1992 Act could affect the operation of the grants made a century earlier, while the 1693 Act was in force. Neither the repealing statute nor the enactment of s 379 in the 1992 Act could be given the effect of confiscating private property without compensation (which would be the effect of such an interpretation) without the clearest words.

65 This principle was stated as follows by Griffith CJ in Clissold v Perry (1904) 1 CLR 363 at 373:

“In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing [compulsory acquisition statutes], that they are not to be construed as interfering with vested interests unless that intention is manifest.”

66 In C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400, Kitto J said at 406 - 407:

“The first of these grounds of distinction, in my opinion, makes directly applicable the firmly established rule of law that a statute will not be read as authorizing the expropriation of a subject’s goods without payment unless an intention to do so be clearly expressed. As was held in Newcastle Breweries Ltd v R [1920] 1 KB 854, this rule applies a fortiori to the construction of a statute delegating legislative powers.”

Owen J said at 415:


“In London and North Western Railway Co v Evans [1893] 1 Ch 16, at p 28, Bowen LJ said ‘... the legislature cannot fairly be supposed to intend, in the absence of clear words showing such intention, that one man’s property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him. Parliament ... can, of course, override or disregard this ordinary principle ... if it sees fit to do so, but it is not likely that it will be found disregarding it, without plain expressions of such a purpose.’

I can find no such purpose expressed or necessarily to be implied anywhere in the Act. Indeed it seems to me that s 14(8) provides a strong indication that the legislature did not have any such purpose in mind.”

See also Wade per Barwick CJ at 181 and Menzies J at 182; Bismark Range (Lucknow) Gold Exploration NL v Wentworth (Lucknow) Goldfields NL (1935) 35 SR (NSW) 400 per Long Innes J at 412; Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408 per Young CJ in Eq at [40] – [43]; and my decisions in Metropolitan Petar v Mitreski [2003] NSWSC 262 at [80] and Hypec Electronics Pty Ltd (In Liq) v Registrar-General (2005) 64 NSWLR 679 at [27], [28]. And see generally Pearce and Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [5.17], [5.18].

67 Neither the IAAA, which repealed the 1693 Act, nor the 1992 Act by s 379 could have the effect of destroying the vested right of ownership of the copper except by clear words or necessary implication. It was not submitted that there are such clear words in either Act nor any feature of either Act from which the necessary implication might arise and I have not perceived any.

68 In any event, even without the operation of that principle, it is clear that, in so far as the Crown’s position was changed to its detriment by the 1693 Act (and I am of the opinion that it was not), the previous position would not be restored by the repeal of that Act. This is in accordance with the principle usually adopted in interpretation statutes (see Interpretation Act 1978 (UK) s 16 and Interpretation Act 1987 s 30). However, the enactment that applies specifically in the present situation is s 9 of the IAAA, which relevantly provides as follows:

“9 Savings
(1) The repeal by this Act of any Imperial enactment does not:
revive anything not in force or existing at the commencement of this Act.”

69 It was submitted on behalf of the defendants that that provision did not operate in the present circumstances, because of the principle enunciated in [34] above that, if the royal prerogative is abrogated by a statute, it is merely placed in abeyance and, if the statute is subsequently repealed, the operation of the prerogative is restored. In this regard, the defendants relied on dicta in De Keyser per Lord Atkinson at 539 - 540; The State of South Australia v The State of Victoria (1911) 12 CLR 667 per Griffith CJ at 703; and The Crown v Dalgety and Company Limited (1943) 69 CLR 18 per Williams J at 47. These dicta really do not constitute authority for the proposition the defendants seek to rely on. The dicta are all obiter. The factual situation in De Keyser was quite different, in that the statute in question re enacted the prerogative right concerned, which had not been specifically repealed. The other references are quite tangential.

70 On the other hand, it is plain that the common law abrogated by a statute falls within the expression “anything not in force or existing at the time at which the amendment or repeal takes effect”: Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 per Gibbs J at 51 - 52. The abrogated common law is not revived by the repeal of the statute: Marshall v Smith (1907) 4 CLR 1617 per Barton J at 1634 - 1635 and per Higgins J at 1645 - 1646. It is plain that prerogative powers owe their operation to the common law: see Wik per Gummow J at 189; Bone v Mothershaw [2003] 2 Qd R 600 per McPherson JA at [18].

71 Section 9(1)(a) of the IAAA is quite general in its terms. Despite the proposition put to me on behalf of the defendants, I am of the opinion that the provisions of the section prevent the revival of any prerogative right of the Crown, to any extent that it was placed in abeyance by the 1693 Act and not in force at the time of the enactment of the IAAA.

72 It is my view that it is s 9(1)(a) of the IAAA that is relevant in the context rather than s 9(1)(c), despite submissions by the defendants.

73 It is therefore my opinion that the pre-existing situation was not changed either upon the repeal of 1693 Act in 1971 or upon the enactment of s 379 of the 1992 Act.

74 In those circumstances, it is my conclusion that the copper is to be characterised as a privately owned mineral, that is, a mineral not owned by the Crown, within the meaning of s 284 of the 1992 Act. The plaintiffs are entitled to payment by the Crown under that section of seven eighths of the royalty paid in respect of the subject copper and perhaps to appropriate declaratory relief, if now sought.

75 Short minutes of order should be brought in to give effect to my ruling. A calculation should be made and agreed, if possible, of the amount payable. Interest should also be calculated and agreed. Questions of costs may be raised at that time.

**********