Gonzo Holdings No 50 Pty Ltd v McKie

[1995] QCA 304

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 174 of 1994

Brisbane

[Gonzo Holdings v. McKie]

BETWEEN:

GONZO HOLDINGS NO. 50 PTY LTD ACN 010 729 138

Appellant

AND:

RONALD GERARD McKIE

Respondent

Macrossan CJ McPherson JA Thomas J

Judgment delivered 14/07/1995

Joint reasons for judgment of McPherson J.A. and Thomas J; Macrossan CJ dissenting.

APPEAL ALLOWED WITH COSTS, INCLUDING THE COSTS OF THE APPLICATION BELOW. THE ORDER DISMISSING THE APPLICATION WITH COSTS IS SET ASIDE. IN LIEU, A DECLARATION THAT, UNLESS AND UNTIL THE APPELLANT FORMS THE INTENTION OF FINALLY DISPOSING ON THE "CURRAJONG" LAND OF THE WASTE SUBSTANCES, SUBJECT TO ML5933, THE OPERATION OF THE PLANT AND EQUIPMENT BY THE APPELLANT ON THE "CURRAJONG" LAND AS DESCRIBED IN THE AFFIDAVITS REFERRED TO IN THE ORIGINATING SUMMONS DOES NOT CONSTITUTE MINING WITHIN THE TERMS OF THE DEFINITION OF "MINE" IN SECTION 1.8 (1) OF THE MINERAL RESOURCES ACT 1989.

CATCHWORDS:	MINES AND MINERALS LAW - Definition of "mine" in s.1.8(1) of Mineral Resources Act 1989 - ambit of phrases "extracting mineral from its natural state" and "disposing of any ... waste substances resulting from mining or extraction" - whether activities on neighbouring land constitute "mining" in contravention of the Act.
Counsel:	Mr F.L. Harrison, Q.C., with him Mr Kelly for the appellant. Mr R.W. Gotterson, Q.C., with him Mr McKenna for the respondent.
Solicitors:	Hopgood and Ganim for the appellant. Crown Solicitor for the respondent.
Hearing Date(s):	14/02/1995
IN THE COURT OF APPEAL	[1995] QCA 304
SUPREME COURT OF QUEENSLAND

Appeal No. 174 of 1994

Brisbane

Before Macrossan CJ

McPherson JA

Thomas J

[Gonzo Holdings v. McKie]

BETWEEN:

GONZO HOLDINGS NO. 50 PTY LTD ACN 010 729 138

Appellant

AND:

RONALD GERARD McKIE

Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 14/07/1995

The appellant sought judicial review of a decision made by a departmental officer to seize

items of plant and equipment belonging to it situated on a property, Currajong, in the area west of

Warwick. The basis of the seizure was the claim of the officer named McKie, that mining was being

carried on at Currajong and that the mining was unauthorised within the meaning of s.11.17(1)(a)(b)

and (d) of the Mineral Resources Act 1989.

The appellant at material times was the holder of an alluvial gold mining lease ML5933 over

an area in the general vicinity of the Currajong property, but not adjoining it and in fact some three

kilometres distant from it. The appellant had been engaging in an operation on Currajong which

resulted in the separation of alluvial gold from quantities of material brought in from its leased area.

No form of authority issued under the provisions of the Act applied with respect to the activity which had been taking place on Currajong.

Following its application for a statutory order of review, the appellant issued a summons

seeking also a declaration but its terms were later conceded to be too wide. The argument

concerning entitlement to declaratory relief was considered by the judge below, he holding that the

appellant was disentitled to relief. When the matter came on appeal to this Court the appellant

focused its claim for a declaration more precisely, in essence by seeking a finding that its operation

of plant and equipment on Currajong in treating material transported from the land included in its

mining lease did not constitute mining without authority under the Act, or a use of the Currajong

property in contravention of the subsections of the Act which have been referred to. In this Court

the respondent showed some disposition to argue that a declaration that "mining" had not taken

place on Currajong would lack utility because the appellant might, in the alternative, be regarded as

being engaged there in unauthorised prospecting or exploring and thus illegality would still be

involved although under another heading. However, the basis of McKie's claim of seizure has

already been mentioned and it related to an allegation of mining. The reality seems to be that if the

appellant obtains a ruling that its operations on Currajong were not "mining" it will have obtained

substantially what it needs to determine the issues in dispute between it and the Department.

In the debate below and in the course of argument before this Court, matters were simplified

somewhat by the acceptance by the parties of an agreed statement of facts. Although this was

helpful and assisted in confining the argument, both sides referred additionally to other material

contained in the appeal record. This further material provided background for the facts in the

agreed statement and included a number of photographs illustrating the various production line

components involved in the procedures conducted at Currajong. Two particular paragraphs from

the agreed statement should be set out:

"9.

The Applicant's purpose in carrying out the said operations upon the Nearby Land
(Currajong) was:

(a)	to extract gold from samples of material from the Leased Land; and
(b)	to apply such extraction towards the larger purpose of testing analysing and evaluating the same;

to determine whether it was commercially viable to continue operations on the
Leased Land.

10.

The amount so extracted was not in excess of a reasonable quantity to assess the commercial viability of the mining lease over the Leased Land."

The items of machinery set up and used on Currajong constituted what was described as a

pilot plant equivalent to a scaled down version of a full production plant. It was a gravity extraction

plant which included items styled loading bin, rotating trommel, jig and carpet lined sluice operating

in conjunction with settling or sediment dams. The function of the carpet lined sluice was to retain

gold fragments as the conglomerate material was washed and passed over it. Some five grams of

gold had been separated by use of the plant prior to the date of seizure and some twelve cubic

metres of material had been processed to yield this return. Up to that stage it had not been

confirmed that the yield was sufficient to justify commercial exploitation. Insufficient material had

been processed. However, a substantial quantity of material had been taken from the leased land

and stockpiled for testing on Currajong. About 284 square metres had been transported from

three trenches or costeans on the leased area which had been excavated to a maximum depth of

approximately four metres. Certain material filed on behalf of the appellant suggested that a quantity

much larger again would need to be taken and processed before a decision upon commercial

viability could be made. Perhaps a quantity as large as 2,000 to 4,000 cubic metres would be

required for this purpose. It was said that the process of assessment of the material removed from the lease site was similar to that used in actual commercial processing. In paragraph 10 of the

statement of facts it was agreed that no more material had been extracted from the lease than was

reasonable in an assessment of commercial viability. Whatever had been done with the five grams

of gold extracted up to the date when operations ceased did not appear although it can be assumed

that it was not abandoned.

The principal contention of the appellant was that it was not within the meaning of the Act

engaged in "mining" on Currajong. The determination of this question involved a resort to the

definitions of "mine" and "mineral" in s.1.8(1) taken in conjunction with such other relevant

indications as the Act provided. The definition of "mine" is as follows:

"`mine' means to carry on any operation with a view to or for the purpose of-

(a)         winning mineral from a place where it occurs;

(b)        extracting mineral from its natural state;

(c)         disposing of any mineral in connection with or waste substances resulting from such winning or extraction;"

The definition of "mineral" in relevant respects is as follows:

"`mineral' means a substance which normally occurs naturally as part of the earth's crust or is dissolved or suspended in water within or upon the earth's crust and includes a substance which may be extracted from such a substance, and includes-

(a)         clay when used for its ceramic properties ..."

etc.

In the definition of "mineral" there follows after the portion quoted a long list of items

including such things as "foundry sand", "marble" and "silica", but while the presence of these

individual items appears to cast no illumination upon the problem of construction presently arising for

consideration, it should be noted that the definition does further continue in these terms:

"but does not include- ....

(n)         soil, sand, gravel or rock ..."

In other contexts attention has been given to the meaning to be attributed to mining and its

derivatives (see e.g. the statement of Kitto J in Federal Commissioner of Taxation v. Broken Hill Pty

Co Ltd (1969) 120 C.L.R. 240 at 244 to 245) but in the end the meaning of "mine" under the Act

of 1989 will have to be derived principally from the words of the statutory definition although

perhaps general notions of what is ordinarily involved in mining may to some extent colour the

interpretation which emerges. It was not suggested that the three parts of the definition appearing in

subparagraphs (a) (b) and (c) were to be read disjunctively.

Some of the arguments advanced on behalf of the appellant sought to place some

restrictions upon the scope of subparagraph (b) but it can reasonably be assumed that subparagraph

(b) is at least intended to add something to subparagraph (a). There appears to be some intended

contrast between "extracting" and "winning" and also between "natural state" and "place where it

occurs". The meaning given for "mineral" is a substance which "normally occurs naturally as part of

the earth's crust" although, somewhat confusingly, the definition refers to it in terms that it "includes a

substance which may be extracted from such a substance". There is a specific exclusion of "soil,

sand, gravel (and) rock" from the definition of "mineral". The argument proceeded on the basis that

the element gold normally occurs naturally in the ground, that is in the earth's crust. It was obvious

that the substantial quantities of host material transported from the area of the mineral lease to

Currajong, contained quantities of gold. This was clearly the expectation and it was confirmed in

practice by the operations carried out with the pilot plant. It can be accepted that looking at the

ordinary meaning of the words, the procedures carried out by the appellant with its pilot plant

amounted prima facie to carrying on an "operation with a view to or for the purpose of "winning

mineral" and also "extracting mineral". However, it is also true that the appellant had a further

objective in view, namely the testing of commercial viability and without this objective it may not

have undertaken the operations at all. The two subparagraphs (a) and (b) of paragraph 9 of the

statement of agreed facts, concisely state under two headings aspects of the appellant's purpose as
well as its ultimate objective of determining commercial viability.

Returning to a consideration of subparagraphs (a) and (b) of the definition of "mine" quoted

above and giving positive meaning where possible to both of those subparagraphs, it can be said that

the excavation of the substantial quantity of host material containing a proportion of alluvial gold from

the area of the mining lease was an operation carried on with a view to or for the purpose of "(a)

winning mineral from a place where it occurs". But this part of the operation was carried on upon

the lease area and so can be put to one side as being covered, presumably, by the authorisation

conferred under the terms of the lease. The further operation carried out with the aid of the pilot

plant on Currajong involved extracting alluvial gold and it did this by separating the gold from a large

quantity of host material in which, in its natural state, it was distributed. This process of separation

should be regarded as amounting to "extracting" the gold and the gold itself is obviously a mineral. A

key to the meaning of the phrase "from its natural state" in subparagraph (b) is provided by the

contrast with the earlier phrase "from a place where it occurs" appearing in subparagraph (a). It thus

appears that a condition of natural distribution within a host material is distinguished from a matter of

geographical location, the latter being the concept referred to in the phrase "place where it occurs" in

subparagraph (a). Prima facie, then, the operation of the pilot plant on Currajong could be regarded

as involving "mining" because it fell within subparagraph (b). So far as it goes, this conclusion may

be all that the respondent needs to sustain its case but a further aspect of the operation may be

embraced within subparagraph (c) of the definition and it should be noticed before passing on.

When the words of the rather compressed and somewhat jumbled phrase appearing in

subparagraph (c) are considered, it seems that what is meant to be covered may be expressed in

this fashion: "Disposing of any mineral in connection with such winning or extraction or disposing of

any waste substances resulting from such winning or extraction". The "waste substances" referred

to will be or can be distinct from "mineral" and that term, it will be recalled, does not include "soil,

sand, gravel or rock". The host material washed away from the gold and disposed of in the ponds at Currajong in the course of operations, can be regarded as waste substances disposed of in that

location and therefore prima facie a product of unauthorised mining. The appellant, however,

contends that even if, prima facie, mining is found to have occurred within the meaning of either

subparagraph (b) or (c), the potential scope of the words in these subparagraphs should be confined

by considerations derivable from other parts of the Act.

One feature of the Act is that it seeks to regulate activities associated with the location and

exploitation of mineral deposits and does so by establishing broad distinctions between different

forms of activity, prescribing specific forms of authorisation referable to each. Thus, prospecting is

one activity in respect of which authorisation by permit is provided for in Part III of the Act;

exploration is another for which permits are prescribed under Part V and mining is a further activity

for which permits are provided in other parts of the Act. The appellant's mining lease was held over

land some distance away from Currajong and that lease and others like it would have been subject

to regulation under Part VII. The Act provides definitions of each of the activities it categorises in

accordance with this scheme and one of the appellant's arguments was that an apparent legislative

intention to include activity under other headings could assist in reaching the conclusion that the

prima facie width of the definition of "mining" should be read down. That is, the appellant's argument

invited the Court to conclude that it was intended that the differently described classes of activity

should be held to be exclusive of one another. The definition upon which the appellant principally

relied was that given for "explore" of which relevant portions are as follows:

"Explore" means take action to determine existence, quality and quantity of minerals on, in or

under land or in the waters or sea above land by -

(a) prospecting;

(b) using instruments, equipment and techniques appropriate to determine existence
of any mineral;

(c) extracting and removing from land for sampling and testing an amount of material, mineral or other substance in each case reasonably necessary to determine its mineral bearing capacity or its properties as an indication of mineralisation ... etc."

The appellant contended that the activities in which it had engaged may well have been

covered under the heading of exploration since it was doing no more than testing to determine

mineral bearing capacity of the samples transported from its mining lease and it was testing no

greater quantity of material than was agreed was reasonably necessary to assess the commercial

viability of the mining lease. This agreement is recorded in the statement of facts.

Even accepting the proposition that the Act seeks to deal separately with different activities

such as exploration and mining, it does not follow that the broad band distinctions which it utilises in

this connection will always provide clear answers when particular forms of activity fall to be

characterised in terms of the scheme. Further, giving some broad consideration to the various parts

of the Act, it is easy to conclude that the legislature may have accepted that there could be

overlapping between different categories of activity and hence the scope of definitions it selected to

apply to each.

The objectives sought to be attained by the Act are wide ones. Amongst the principal

objectives declared by s.1.3 are these: to minimise land use conflict with respect to prospecting,

exploring and mining; to encourage environmental responsibility in those activities and also to

encourage responsible land care management in respect of them. With this in mind it is not obvious

that the Court should engage in any particularly narrow reading of the definitions which the Act

attaches to various activities. The question in the end is whether the definition of "mine" is

sufficiently clear to embrace the activity engaged in by the appellant in the present case whether or

not it might also be thought to be included under the definition of "explore". The argument that the

definition of the latter activity should be used to cut down that involved in the former should not be

accepted. It can be added that the activity of the appellant at least on Currajong is by no means

clearly embraced by the definition under the heading of "explore", although it is not necessary to

express a final conclusion on that point in this case.

The appellant was admittedly engaged in extracting and removing from land for testing an

amount of material reasonably necessary to determine its mineral bearing capacity as an indication of

mineralisation but it was doing this on and from the land included within its lease. The opening

words of the definition of "explore" refer to taking action "in or under land" and the impression is

conveyed that the activity is regarded as attached to the land under investigation. There is no reason

to think that any subsequent testing or use of instruments to determine mineralisation if carried out in,

say, a specialist city laboratory would remain part of the concept of exploration even though relevant

exploration activity may have taken place at an earlier stage. The conclusion that the appellant was

engaged in mining on Currajong because it was there "extracting mineral from its natural state" does

not involve the further conclusion that many large scale industrial activities such as smelting or refining

when carried out in the kind of large installations commonly utilised will amount to "mining" or will do

so unless the words of the definition are significantly read down. Further decision upon questions

such as these can be left to occasions when they arise for consideration. However, the observation

can be offered that under subparagraph (b) of the definition of "mine", a distinction may well be

intended to be drawn between compound substances on the one hand and mere mixtures on the

other. If mineral is accepted as being the substance which "normally occurs naturally as part of the

earth's crust" then be it a compound or a pure element, it can be expected that it will be found

mixed with soil, sand or gravel as well as perhaps with other minerals. Action taken to extract the

mineral in question from the host material may, not unexpectedly, fall within the definition of mining,

but transforming compound substances may not be included in the definition because it goes further

than mere extracting. That part of the definition of mineral which declares that it "includes a

substance which may be extracted from such a substance (a mineral)" may also call for attention on

some other occasion yet once again, it may be noted, that the words just quoted may refer to a

process of extraction rather than transformation for example, of compound substances.

A further argument which the appellant advanced in its endeavour to persuade the Court that
some reading down of the apparent scope of the phrase "extracting mineral from its natural state"

should be undertaken was that the earlier words of the definition of "mine" include these words: "to

carry on any operation with a view to or for the purpose of". Decided cases from the taxation

sphere were offered in support of the proposition that the reference to "purpose" should be read as

a reference to dominant purpose, it being suggested that the appellant's dominant purpose here was

not to extract the alluvial gold but to determine commercial viability of the mineralisation of its lease.

However paragraph 9 of the statement of facts states two separate purposes one of which is clearly

described as extracting gold from samples of material taken from the leased land. It may be that the

appellant had a series of purposes in mind including one ultimately of making a profit from its

operations but this does not mean that it should not be thought of in respect of its operations upon

Currajong as having a purpose of extracting mineral from its natural state. From the general

description of the appellant's activities provided in this case there would be no difficulty in concluding

that the appellant had such a purpose significantly in view and, as well, paragraph 9 of the statement

of facts declares this to be so.

The conclusion which should be reached is that the appellant was engaged in "mining" on

Currajong and was doing so without the benefit of any authorisation under the Act. This being so,

the basis of the departmental seizure is established and the challenge to it must fail.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 174 of 1994

Brisbane

Before Macrossan C.J.

McPherson J.A.

Thomas J.

[Gonzo Holdings P/L. v. McKie]

BETWEEN

GONZO HOLDINGS NO.50 PTY LTD ACN 010 729 138

(Applicant) Appellant

AND

RONALD GERARD McKIE

(Respondent) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A. & THOMAS J.

Judgment delivered the 14th day of July 1995

The appellant Gonzo Holdings No. 50 Pty. Ltd. is the holder of a mining lease ML5933

issued on 23 December 1987 under the Mining Act 1968. The land subject to the lease is at

Karrara in the Warwick district in an area of abandoned gold workings or old diggings. The

appellant excavated three costeans or trenches on the land from which it removed material

consisting, according to the report of Mr Siemon, of a mixture of a mudstone, sandstone clay and

quartz. Samples of the material were transported to a property, which appears to be named

"Currajong", some 3 km to perhaps 6 km north of the leased area. There the appellant established

what is described as a pilot plant for treating the material to extract alluvial gold from it. The method

of treatment involves washing the material by passing it through a sluice which utilises gravity to retain the heavier gold fines and washes away the accompanying material, which is discharged into

settlement or sediment ponds constructed on the site.

The Currajong land where the pilot plant is located is a site which had previously been used

for processing alluvial gold and the settlement ponds were already established there. The land is

privately owned, and the appellant has obtained the consent of the owner to use it in this way. The

appellant's purpose in carrying out this treatment is, as the parties to these proceedings have agreed,

to extract gold from the sample material excavated from ML5933 for the purpose of testing,

analysing and evaluating it in order to determine whether it was commercially viable to continue

operations on the leased land ML5933.

Although the appellant has the owner's consent to what is being done on the Currajong land,

it has no mining lease or other statutory authority to conduct those activities on that land. By

s.11.17(1) of the Mineral Resources Act 1989 a person shall not:

"(a)	enter or be on land to carry on prospecting, exploration or mining unless the person is the holder of the relevant authority under this Act ..."
"(d)	carry on mining operations upon ... land unless the person is duly authorised under this Act ..."

Under s.10.8(1) of the Act, a field officer of the Department of Minerals and Energy may, if that

officer reasonably believes that any mineral is being or has been mined without statutory authority,

seize the equipment being used. The respondent Mr R.G. McKie is a field officer who, after

inspecting the land at Currajong, seized the plant in June 1994. His power to seize depends on

whether the activities being conducted by the appellant on the Currajong land amounted to mining

under those provisions. An originating summons was issued by the appellant to have it determined

whether or not those activities came within the definition of "mine" in the 1989 Act. The primary

judge considered that they did, and gave judgment for the respondent dismissing an application by

the appellant for a declaration to the contrary effect. This is an appeal against that decision.

Ordinary meaning of "mining". It will be necessary to consider in some detail the

definition of "mine" in s.1.8(1) of the Mineral Resources Act 1989. Before doing so, however, we

think it helpful to notice that the expression "mining" has been held to have no fixed meaning but is

one that is "readily controlled by context and subject matter". N.S.W. Associated Blue-Metal

Quarries Limited v. F.C.T. (1956) 94 C.L.R. 509, 522. The primary signification of the word

"mines", of which "mining" is a derivative, is underground excavations or underground workings:

ibid, at 523. But, in relation at least to certain metals, minerals and substances which have been

traditionally recovered by underground workings, its meaning has, particularly in Australia, been

extended, so that "whatever the form of the excavation that is made for the purpose of winning them,

whether underground or open-cast, it will be called a mine and the operations will be called mining" :

ibid, at 523-524. Gold is a mineral, which is found in a variety of situations, alluvial and otherwise;

but, wherever it may be found, the process of winning it is, in Australia, generally now described as

gold mining.

On the face of it, therefore, what the appellant was doing on the land at Karrara subject to

ML5933 was, according to the ordinary meaning of the expression, mining for gold. It is true that,

as the appellant pointed out, there is in the judgment of Kitto J. in Broken Hill Proprietary

Company Ltd. v. Commissioner of Taxation (1969) 120 C.L.R. 240, 244-245, a parenthetical

remark which implies that activities of an exploratory nature may not amount to mining. Speaking of

the expression "carrying on ... of operations on a mining property" in s.122 of the Income Tax

Assessment Act, his Honour said:

"It comprehends more than mining in the narrow sense which imports the detaching of lumps of material from the position in which in a state of nature, they form part of the soil. It extends to any work done on a mineral-bearing property in preparation for or as ancillary to the actual winning of the material (as distinguished from work for the purpose of ascertaining whether it is worthwhile to undertake mining at all)."

The bracketed portion of this passage was referred to by Hope J. in Wyong Shire Council v. Associated Minerals Consolidated Ltd. [1972] 1 N.S.W.L.R. 114. In a decision which was later affirmed by the Privy Council ([1975] A.C. 538), his Honour held that drilling operations

undertaken to investigate what minerals were on the land with a view to obtaining a mining lease

were merely prospective or exploratory, and so did not constitute mining within the meaning of a

definition in a town planning ordinance, which defined "mine" as including an operation carried on for

the purpose of obtaining any metal or mineral. On the other hand, his Honour was evidently

prepared to accept that later activities to enable a dredge path to be planned and mining to take

place were at least preliminary to mining as such. The decision on this point was to some extent

consciously influenced by the town planning considerations involved; but it tends to show that the

activities being carried out by the appellant on the Karrara land, even though their purpose may have

been exploratory, would, on almost any view of it, be considered to be mining of that land. Indeed,

the appellants probably had both purposes in mind, which is no doubt a reason why they obtained a

mining lease and not merely an exploration permit.

Treatment of ore mined. Characterising the Karrara operation as mining is relevant to one

aspect of the definition in s.1.8(1) of the Act; but the central question on this appeal was not the

nature of the activities there, but whether what was being done on the Currajong land was capable

of being regarded as mining. Considered apart from the statutory definition, the closest and most

relevant decision is Bismarck Range (Lucknow) Gold Exploration N.L. v. Wentworth

(Lucknow) Goldfields N.L. (1935) 35 S.R. (N.S.W.) 400. There the plaintiff was carrying on

gold mining operations at Lucknow near Bathurst under the authority of a mining lease granted under

the Mining Act 1906 (N.S.W.). Ore won from that land was transported to other land, said to be

situated "some little distance" away, which was owned by Galloway and another. With the consent

of those owners, the plaintiff set up and used a stamper battery on an area of 5 out of 12 acres of

that land to crush the ore and store the tailings preparatory to removing them elsewhere for cyanide

treatment to extract the gold.

A dispute having arisen concerning title to the tailings on the 5 acre site, the defendant

argued that the plaintiff was not entitled to an injunction restraining interference with those tailings

because they were the result, so it was said, of illegal mining on that site. Neither the plaintiff nor, at

the relevant time, Galloway had a mining lease over the 5 acre site authorising crushing on that land.

In rejecting the defendant's argument, Long Innes C.J. in Eq. said (35 S.R. 400, 409).

"I am unable to accept the view that the owner of ore lawfully extracted by him under the authority of a lease under the Mining Act 1906, who crushes or otherwise treats such ore on another's property, with the consent of that person, or who procures it to be so crushed or treated, without obtaining a lease under the Mining Act in respect of the property on which such ore is so crushed or treated, or causing such lease to be procured, thereby incurs the penalty imposed by s.196. In my view the plaintiff has not brought the tailings in question into being by illegal mining, and its hands are not unclean."

Section 196, to which his Honour referred, provided that "any person who without lawful authority

commences to mine on ... any private land ... shall be liable to a penalty not exceeding £10, and any

gold ... obtained by him by such unauthorised mining may be forfeited ...". Section 196 was thus a

rough analogue of s.10.8 of the Act in this case. Under s.3 of the Mining Act 1906 (N.S.W.) the

expression "to mine" was very widely defined, so as to include "... to crush ... or otherwise deal with

any earth by any mode or method for the purpose of obtaining gold or minerals therefrom". The

word "earth" was defined as meaning "rock, stone, quartz, clay, sand, soil, or mineral".

For his part the respondent relied on the decision in F.C.T. v. Henderson (1943) 68

C.L.R. 29, where it was held that calls paid to a company engaged in treating old mining dumps

according to a new chemical process were calls paid on shares "in a mining company ... carrying on

mining operations ... for gold" within the meaning of s.78(1)(d) of the Income Tax Act 1936. In

stressing that the meaning of that expression was to be determined as a question of fact in

accordance with the vernacular of mining men, Williams J. accepted evidence of a Mr Edquist that in

mining parlance the process of extracting gold from the dumps was called re-treatment, which was

"one amongst a number of operations which can be described generically as mining operations" (68 C.L.R. 29, 39). In affirming that part of the decision, Latham C.J., with whom Rich J. agreed,

remarked that Edquist's evidence was that treatment of the excavated material by a battery or

otherwise, or by a chemical process, constituted gold mining "when carried out at the place where

the gold-bearing material was obtained". The witness, the Chief Justice went on (68 C.L.R. 29, 45):

"agreed that if material such as concentrates or tailings had been removed from the place where it was produced, and treated at some other place ... the treatment at that other place would not be described as a mining operation, though the same process at the place of origin would be described as part of the mining operations".

What was said in F.C.T. v. Henderson tends, if anything, to confirm the impression that the

process of extracting gold from excavated material is, at least if it is conducted away from the

activity of excavating it, not considered as "mining" according to the ordinary acceptation of that

word. Some other decisions involving s.122 of the Income Tax Assessment Act must for present

purposes be approached with a degree of caution. See the passage already referred to from

Broken Hill Proprietary Co. Ltd. v. Commissioner of Taxation (1969) 120 C.L.R. 240, 244-

245. The question they raise is whether capital expenditure on plant and other structures has been

"incurred in connexion with the carrying on ... of mining operations upon a mining property". The

effect of this collocation, which is plainly very wide in scope, is that all activities up to the last step in

the process are capable of being considered "part of the mining operations": F.C.T. v. I.C.I.

Australia Ltd. (1972) 127 C.L.R. 529, 549, 582-583. It does not follow that each such step,

viewed in isolation, would amount to "mining" in the ordinary sense, the more so if it is conducted as

a separate operation at a different location.

"Mining" as defined. The decision in the Bismarck Range case in 1935 that crushing ore

some distance away was not mining was reached despite a statutory definition of the expression "to

mine" which specifically included crushing "earth" for the purpose of obtaining gold from it. The

same definition appeared in s.3 of the original Mining Act 1898 (Qld.), which provided that "to

mine" meant:

"To disturb remove cart carry wash sift smelt refine crush or otherwise deal with any earth by any mode or method whatsoever for the purpose of obtaining gold or any other mineral therefrom".

Similar definitions continue to appear in other Australian mining legislation. In Queensland, however,

the common formula was departed from in s.7(1) of the Mining Act 1968, which provided that,

when used as a verb, the expression "mine" meant:

"to carry on any operation with a view to or for the purpose of winning material from a place where it occurs naturally or extracting mineral from its natural state or disposing of any mineral in connexion with such winning or extraction or disposing of waste substances from such winning or extraction."

The definition was retained in substantially the same form when the Mineral Resources Act 1989

was enacted. By s.1.8(1) of that Act the word "mine" is defined to mean:

"to carry on any operation with a view to or for the purpose of -

(a)         mining mineral from a place where it occurs;

(b)        extracting mineral from its natural state;

(c)         disposing of any mineral in connexion with or waste substances resulting from such mining or extraction".

In the same section the word "mineral" is defined to mean primarily:

"a substance which normally occurs naturally as part of the earth's crust or is dissolved or suspended in water within or upon the earth's crust and includes a substance which may be extracted from such a substance, and includes ..."

There follows a list of substances that are specifically included, and then a series of other substances

which are specifically excluded from the definition of mineral. Gold is plainly within the definition of

"mineral", as are many other substances occurring naturally in the earth's crust including those found

in chemical combinations with another element, requiring some process or treatment, like smelting or

electrolysis, in order to produce the pure, or at least a purer, form of the metal. Aluminium from

bauxite is perhaps the prime example of a substance which, by means of some such process, "may

be extracted from such a substance". Both aluminium and bauxite are therefore "minerals" within the

terms of the definition.

Despite the width of the definition of "mine" in s.1.8(1), it is evident that the reason for

departing in 1968 from the previous formulation was to restrict rather than expand the definition in

the 1898 Act. It is possible to think of several different reasons why that should have been

considered desirable. One was the extremely wide scope which the previous definition imparted to

the jurisdiction of a mining warden. The jurisdiction of wardens has always been conferred in terms

which related it to "mining", and which in the past made it exclusive of the jurisdiction of other courts

including the Supreme Court. Although appropriate in the case of the numerous small diggings of

goldrush days, its persistence into modern times is incompatible with the vast capital investment now

required for large mining undertakings many of which are essential to the economic wellbeing of the

State. In Queensland mining wardens have in the past almost invariably been stipendiary magistrates

who, until recently, seldom had a legal training equal to many of the questions which tended to arise

in the exercise of their unusually extensive jurisdiction in this field. The upshot was a series of arid

jurisdictional disputes in practically all mining litigation coming before the Supreme Court. Examples

are George Comanos & Associates Pty. Ltd. v. Fingold Resources Pty. Ltd. (No. 1) [1988] 2

Qd.R. 691; Graham v. Suimin Co. (Australia) Pty. Ltd. [1989] 1 Qd.R. 291; Central

Queensland Speleological Society Inc. v. Central Queensland Cement Pty. Ltd. (No. 1) [1989]

2 Qd.R. 512; Gaza Grazing Pty. Ltd. v. Ampol Exploration Limited [1990] 1 Qd.R. 202; R. v.

Windridge, ex.p. Pacific Coal Pty. Ltd. [1992] 2 Qd.R. 180 and the discussion in O'Grady v.

North Queensland Co. Ltd. (1990) 169 C.L.R. 356. The new regime initiated by s.10.22 of the

1989 Act has greatly diminished such problems; but it remains true to say that under s.10.20 of the

Act the limits of the warden's jurisdiction continue to depend on the meaning and ambit of the word

"mining".

Extracting mineral. With these considerations in mind, it is necessary to return to the definition of "mine" in s.1.8(1) of the 1989 Act. For reasons already explained, there is a proper basis for concluding that what the appellant has been doing on ML5933 at Karrara amounted to

"mining" according to the ordinary meaning of that word, and consequently also according to the

meaning of the term as defined in para.(a), which is "winning mineral from the place where it

occurs". The central question is whether the activities it has been carrying out on the Currajong land

bring it within the terms of para.(b) "extracting mineral from its natural state". It will in due course be

necessary to return to the third paragraph of the definition (c), which includes "disposing of any ...

waste substances resulting from such mining or extraction". For the present, it is enough to say that

the ambit of that part of the definition is dependent ultimately on the meaning to be ascribed to "such

mining or extraction" in the preceding two paragraphs.

The expression "extracting mineral from its natural state" in para.(b) of the definition is plainly

capable of a wide or a narrow interpretation. The strength of the respondent's position is that,

according to ordinary rules of interpretation, some meaning or content must be assigned to the

expression in para.(b) which differs from or adds to that in para.(a). Adopting this approach, it is

said that para.(b) refers or extends to the operation of treating a "substance which normally occurs

naturally as part of the earth's crust" for the purpose of "extracting minerals from its natural state".

Treating by washing the material on the Currajong land would on this view, constitute "mining" within

the terms of para.(b) because it involves extracting gold fines from their natural state. It follows that

treating bauxite by refining and smelting to produce alumina, or copper sulphate by electrolysis to

produce copper, would also involve extracting minerals from their natural state.

Such an interpretation would, however, have ramifications so far-reaching as to raise serious

doubts about its correctness. It would mean that every activity undertaken anywhere in the State

which resulted in the extraction of a mineral from a compound of which it formed an element would

necessarily constitute "mining" within the terms of para.(b) of the definition. Laboratories in

universities, schools, or in private institutions which engaged in separating or assaying minerals would

be brought within the Act. Unless in each instance someone had the forethought to apply for a mining lease over the land on which such activities were being conducted, they would inevitably

contravene s.11.17(1) of the Act, and their equipment would be liable to seizure under s.10(8)(1).

What is more, the same would be true of any of the various plants in different parts of the State

which carry out processing and treatment of ores won from the ground elsewhere in the State under

the authority of a mining lease, or even brought into the State from somewhere else. There is nothing

in the Act, apart from para.(b) of the definition, that suggests that activities like that amount to

mining.

The argument based on absurdity or inconvenience is in this case therefore unusually strong.

By s.32A of the Acts Interpretation Act 1954, definitions in or applicable to an Act apply "except

so far as the context or subject matter otherwise indicates or requires". There is some indication in

the definition of "minerals" in the Act that para.(b) of the definition of "mine" is not intended to have a

meaning as wide as that contended for by the respondent. The definition of "minerals" previously

quoted in these reasons stopped at the point where it introduced the list of substances specifically

included as minerals. The portion of the definition goes on to include within its scope the following

specific substances:

"(a)	clay when used for its ceramic properties, kaolin and bentonite;
(b)	foundry sand;
(c)	hydrocarbons and other substances or matter occurring in association with shale or coal and necessarily mined, extracted, produced or released by or in connection with mining for shale or coal or for the purpose of enhancing the safety of current or future mining operations for coal or the extraction or production of mineral oil therefrom;
(d)	limestone when used for its chemical properties;
(e)	marble;
(f)	mineral oil or gas extracted or produced from shale or coal by in situ processes;
(g)	peat;
(h)	salt including brine;
(i)	shale from which mineral oil may be extracted or produced;
(j)	silica, including silica sand, when used for its chemical properties;
(k)	rock mined in block or slab form for building purposes;

but does not include

(l)          living matter;

(m)        petroleum within the meaning of the Petroleum Act 1923;

(n)         soil, sand, gravel or rock (other than rock mined in block or slab form for building purposes) to be used or to be supplied for use as such whether intact or in broken form;

(o)        water."

If extracting mineral from its natural state had the wide meaning contended for by the

respondent, it is not easy to discover the reason for including some of these items specifically. In

particular, it is difficult to see why, if the respondent's contention is correct, it was thought necessary

to include (f) "mineral oil or gas extracted or produced from shale or coal by in situ processes". The

clear implication is that there was a doubt whether extracting mineral oil or gas by means of a

process which "produced" it in that form from shale or coal still in the ground ("in situ") amounted to

mining, whether under para.(a) or para.(b) of the definition of "mine". Likewise, the reference in (c),

in the inclusive list of minerals, appears clearly enough to be directed to tapping hydrocarbons

(which would include natural gas and a range of other substances) necessarily "produced" or

released in the course of preparing for some future contemplated mining activity, such as coal mining

or the extraction or production of mineral oil from the ground. If the process of extracting or

producing such minerals from a substance already excavated constitutes "mining" under para.(b) of

the definition, there was no reason for specifically including such activities when they take place in

situ.

In addition, there is some indication in other contemporary Acts of Parliament that, even

after the new definition was incorporated in the 1968 Act, the process of treating ores or substances

to produce metals or minerals was not considered to be mining within the meaning of that definition.

Section s.3(1)(b) of Schedule 2 of the Mineral Resources Act 1989 contains a provision which

deems certain pre-existing mining and special mineral leases, etc., which had been granted under

particular statutes, to be mining leases granted for the balance of their unexpired terms. Included in

the Table which follows s.3(1)(b) are, for example, the Aurukun Associates Agreement Act 1975;

Mount Isa Mines Limited Agreement Act 1985; and the Queensland Nickel Agreement Act

1970. A glance at the provisions of these Acts, and of the Special Leases which they contain, show

that the treatment of ore to produce mineral is throughout regarded as something distinct from

mining, winning or extraction of the ore from the ground. In Part II of the Mount Isa Mines

Agreement the provisions of the mining lease contain, in cl.3(b) of the Agreement, a definition of

"treatment" which includes "crushing ... concentrating, smelting, refining alloying", which characterises

it as an operation distinct from "exploring or mining for" certain specified minerals and for other

minerals "approved to be mined pursuant to the Mining Act 1968-1983" in cl.3(a).

In similar fashion, the Aurukun Associates Agreement contemplated the establishment of a

refinery, which was to be either within the Special Bauxite Lease "or elsewhere within the State", for

the production of alumina: see cl.14. For its part, the Greenvale Agreement expressly provided for

the construction of a railway commencing at the Greenvale mine and terminating at the treatment

plant near Townsville: cl.1 of Part IV of the Agreement. If treating ore to extract minerals was being

viewed as "mining", it is surprising that the Special Mineral Lease to be granted under each of those

Agreements did not specifically extend to those treatment plants as well as the places where the ore

was to be excavated. The Greenvale Agreement Act 1970 was passed after the Mining Act

1968 but before it came into force. Nevertheless, if the respondent's interpretation is correct, the

operations at the Greenvale nickel treatment plant at Yabulu near Townsville would have constituted "mining" when the 1968 Act came into force, which it did on 11 November 1971. After that date

those operations would have amounted to "mining" because, on the interpretation contended for by

the respondent here, they involved extracting mineral in the form of nickel from the "natural state" in

which it had been previously mined or won from the ground at Greenvale.

From what we have said, it is evident that we are unable to conclude that the appellant's

activities on the Currajong land amounted to mining within the terms of para.(b) of the definition.

Although the effect of our interpretation of para.(b) is to bring it closer in meaning to the provisions

of para.(a) of the definition, we consider that the reason for incorporating it was to include

operations which in 1968 might not have been thought of as mining in the traditional sense; for

example extracting brine from aquifer, as in F.C.T. v. I.C.I. Australia Ltd. (1972) 127 C.L.R. 529.

We are not prepared to hold that "extracting mineral from its natural state" extends to the process of

washing or treating on the Currajong land the gold bearing material brought there from the mining

operations carried out on ML5933.

Disposing of waste substances. The question remains, however, whether para.(c) of the

definition of "mine" in the Act applies to what the appellant has been doing on the Currajong land.

Once it is accepted that washing the material on that land in order to extract gold from it did not

itself amount to mining within para.(b) of that definition, it follows that disposing of waste substances

resulting from doing so could not constitute "mining" for the purpose of para.(c) of that definition.

Under that paragraph, it is only waste substances resulting from "such ... extraction" that are

relevant.

On the other hand, the question also arises whether the washing activity on the Currajong

land amounts to mining because, in terms of para.(c), it involved "disposing of any ... waste

substances resulting from such winning ...". The "winning" in that paragraph refers back to para.(a)

of the definition, which is "winning mineral from the place it occurs". The place where the gold was

mined was the land subject to ML5933, and it was "waste substances" resulting from mining on that land that were being discharged on to the Currajong land. They were the materials, described by

Mr Siemon as comprising mudstone, sandstone and clay, which were discharged into the settlement

ponds after being passed through the sluice.

The point at issue here also draws in another of the appellant's submissions. It is that the

definition of "mine" in s.1.8(1) opens with the words "to carry on any operation with a view to or for

the purpose of" doing things specified in paras.(a) to (c). We read those paragraphs as being

disjunctive, so that the definition is satisfied if there is a view to or purpose of doing any one of them.

The appellant contended that the purpose or view in question must be the primary or dominant

purpose, and that the primary or dominant purpose of the appellant here was to test or evaluate the

material from the standpoint of its gold-bearing content. However, even if it is accepted that the

appellant's overriding object is to determine the auriferous quality of the material on ML5933, it

remains the case, that, in order to do so, the resulting waste substances are being discharged on the

Currajong land where the washing is taking place. The appellant's purpose is as much to remove the

material from the gold as it is to remove the gold from the material.

In arriving at the meaning of the expression "disposing of any ... waste substances" in

s.1.8(1), and in applying it to the provisions of s.1.17(1), we were pressed by the respondent with

what are described in s.1.3 as the "objectives" of the Act. They are stated to include such matters

as (a) to encourage and facilitate prospecting and exploring for and mining of minerals; and (d) to

encourage environmental responsibility in prospecting exploring and mining. There is an obvious

tension between considerations like these, and, since s.1.3 gives no primacy to one over the other, it

is difficult to see how in the resolution of the present question either of those two objectives can be

given decisive weight, the more so where, as here, the question is one that turns on the meaning to

be given in the first instance to defined terms rather than to substantive provisions of the Act. The

dilemma posed by the often competing interests or ideals of miners and environmentalists is not one that the legislature can pass on to the judiciary for resolution by the expedient of laying down, as is

done in s.1.3, that all such objectives are to be understood as equally dominant.

Meaning of "disposing of". In the light of these considerations it becomes necessary to

determine what is meant by "disposing of any ... waste substances". The Act does not define the

expression "disposing of" but its ordinary meaning, particularly when used in conjunction with a

subject like waste substances, is to get rid of, to put out of the way, or to finish off. In the context of

para.(c) we take it as meaning "get rid of" in the sense of disposing of those substances finally rather

than temporarily. Whether the appellant has (or on the dates in 1994 to which the evidence of the

respondent and Mr Siemon relates) had such an intention or purpose is not altogether easy to

determine on the material before us. On what we are told about it, the quantity of waste material so

far is small. In his report Mr Siemon says that "the amount of material processed to date does not

warrant the hire of a truck to return waste to the lease"; and also that "to date insufficient material

has been processed to warrant removal of waste back to the lease". In the affidavit of the

respondent, the only detailed reference to it is in para.14, where Mr McKie says that "a wet muddy

trail led downhill from the plant to the first sediment dam". Two further affidavits of K.J. Aylward

and R. Schmiede (which are referred to in the originating summons but not included in the record on

appeal) add little, if anything, to this aspect of the facts.

There is therefore not much evidence on which to base our inference about the intention of

the appellant and, in particular, whether or not it intends to remove the waste material on Currajong

back to the leased land at Karrara. However, it is obvious that it will quickly defeat the purpose of

the settlement ponds into which the water and waste material is being discharged if that material is

permitted to build up to a level at which they are no longer able to receive the water. The water is,

according to the evidence, recycled for use in the washing process. The appellant will sooner or

later be compelled to remove the waste from those ponds in order to enable them to continue

functioning. Provided it does remove the waste from the Currajong land, it cannot be said that at the relevant time in 1994 it had the intention of finally disposing of that waste on that land. If the waste

is returned to the land at Karrara which is subject to ML5933, the appellant cannot be held to have

contravened s.11.17(1) of the Act by having entered on the Currajong land, or carried on

operations on that land, "with a view to or for the purpose of: (c) disposing of any ... waste

substances resulting from ... mining" either on that land or elsewhere. If based upon the "disposal"

limb of the definition the respondent's seizure was premature.

In these circumstances there are some difficulties in formulating an appropriate declaration to

take account of the element of purpose or intention with respect to the waste material. The

originating summons simply seeks a declaration "as to whether the definition of "mine" in s.1.8 of the

Mineral Resources Act 1989 includes the operation of the plant and equipment described in all four

of the affidavits. Because the matter depends upon whether the appellant's purpose is to finally

dispose of the waste material on the Currajong land, we would not be justified in making a

declaration in that simple form. However, we think that that aspect of the matter is capable of being

accommodated in the declaration we have in mind.

From what we have said, it follows that the appeal should be allowed with costs, including

the costs of the application below. The order dismissing the application with costs should be set

aside. In lieu there should be a declaration that, unless and until the appellant forms the intention of

finally disposing on the "Currajong" land of the waste substances, or any of it, resulting from its

mining on the land subject to ML5933, the operation of the plant and equipment by the appellant on

the "Currajong" land as described in the affidavits referred to in the originating summons do not

constitute mining within the terms of the definition of "mine" in s.1.8(1) of the Mineral Resources

Act 1989.