Manna Hill Resources Ltd v South Australia

[2004] HCATrans 135

[2004] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A32 of 2003

B e t w e e n -

MANNA HILL RESOURCES LTD

Applicant

and

STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 APRIL 2004, AT 2.03 PM

Copyright in the High Court of Australia

MR M KEITH:   May it please the Court, I appear with MR M.A. MANETTA, for the applicant.  (instructed by Mellor Olsson)

MR M.D. WALTER, QC:   May it please the Court, I appear with MS F.L. LINN, for the respondent.  (instructed by Crown Solicitor for the State of South Australia)

GUMMOW J:   Yes, thank you.

MR KEITH:   If the Court pleases, this matter concerns the transfer of mining leases from one of the BHP companies to the applicant, and the refusal of ministerial consent to that transfer.  I propose to deal first with the question arising from the National Parks Act and the proclamation in 1982 said to give rise to a ground on which the Minister for Environment and Heritage was required ‑ ‑ ‑

GUMMOW J:   Before you do that, what do you say about what is said by your opponent in paragraphs 3.2.10 on page 120 of the application book -well, starting at 3.2.8 actually?

MR KEITH:   Thank you, your Honour.

GUMMOW J:   In other words, if we got into all of this, what would be the present practicalities of any outcome that we could provide?

MR KEITH:   The present practicalities go to declaratory relief that would show that the applicant was entitled to be the transferee of the mining leases, entitled to be the holder of those mining leases at a time when it was not proper for BHP to withdraw the application for renewal.  The application for renewal ought to have been granted as is dictated by the Mining Act and as was found by the court below, with the result that, although the present state of affairs appears to be that the lease has expired, the declaratory relief would restore the position that the mining leases did not expire ‑ ‑ ‑

GUMMOW J:   It would not restore anything, would it?

MR KEITH:   With respect ‑ ‑ ‑

GUMMOW J:   It would be a declaration.  Now, why should such a declaration be made?

MR KEITH:   The declaration is called for in circumstances where the applicant, as a transferee entitled to a renewal, would be entitled to be put back in the position as if the consent of the Minister for Minerals and Energy were given, which we say it was, and from the ‑ ‑ ‑

HAYNE J:   But put back in the position vis-à-vis the respondent, namely State of South Australia, or put back in the position vis-à-vis BHP, that is, is this application ultimately directed to securing a position seen to be of advantage in other litigation, or is there some immediate and practical outcome that will be achieved between these parties in this litigation?

MR KEITH:   Between these parties because the declaratory relief would restore the mining lease to the register, showing that the applicant was the ‑ ‑ ‑

HAYNE J:   No, it would not.  No, it would not.  A declaration would simply say that the court declares the rights of the parties to be such and such.

GUMMOW J:   Or to have been such and such.

HAYNE J:   Yes, exactly so.

MR KEITH:   Your Honour, the point raised by the respondent in paragraph 3.2.9 deals with a proclamation made after the proceedings were instituted, and a proclamation on which the court below did not hear detailed submissions, and on which Justice Debelle in his decision referred to the question of whether that ‑ ‑ ‑

GUMMOW J:   It was after Justice Gray, was it not, but before the Full Court?

MR KEITH:   Yes, your Honour, in circumstances where the judgment on behalf of the Full Court recognised a question as to whether that proclamation could take away rights that had, on our case, previously come into existence, relying on the common law presumption that rights are not taken away retrospectively or, in the alternative, on section 16 of the Acts Interpretation Act and a submission that the proclamation, having been made on a resolution of both Houses of Parliament, is an Act of Parliament.  On that basis, it is the applicant’s submission that the proclamation of July ‑ ‑ ‑

GUMMOW J:   Could you say that again?  On the footing that ‑ ‑ ‑

MR KEITH:   The proclamation of July 2002 was a proclamation made at the request and by resolution of both Houses of Parliament.  That proclamation appears in the respondent’s reference material.  It is the first item on the index and the first page behind the cover sheet.  In the left‑hand column, the middle item in the Gazette being a proclamation under the National Parks and Wildlife Act, paragraph 3 recites that:

A resolution requesting the Governor to make this proclamation has been passed by both the House of Assembly and the Legislative Council.

GUMMOW J:   Yes.

MR KEITH:   We take from that a submission that that proclamation is an Act of Parliament ‑ ‑ ‑

GUMMOW J:   Wait a minute, just a minute.  Was the existence of such a resolution a condition for the exercise of the power to make the proclamation?  Is there any source in any statute of a necessity for a resolution?

MR KEITH: Yes, the proclamation power is in section 43 of the National Parks and Wildlife Act, which is in the respondent’s bundle ‑ ‑ ‑

GUMMOW J:  Yes.

MR KEITH:   Subsection (5) provides that:

A proclamation under this section in respect of land constituting a national park –

GUMMOW J:   Yes, thank you, yes I have it.

MR KEITH:   Thank you.  From that proposition, we put the submission that the proclamation of July 2002 does not automatically have the effect put forward by the respondent, namely, to leave the application redundant or of no utility.  The question that arises is whether the applicant’s rights to hold the mining lease ought to be recognised by the State of South Australia.

The applicant fully recognises that the question of the exercise of those rights to mine in the national park are, nevertheless, the subject of a separate discretion in the Minister for Environment.  That is, on the applicant’s case, not the issue in these proceedings.  For the applicant, the issue is the entitlement of the applicant to be the holder of the mining lease that was previously held by BHP, pre-existed the declaration of the Gammon Ranges National Park in 1982, and is subject to, on the applicant’s case, limitations as to what statutory provisions could be made in relation to those mining leases, and limitations as to what ministerial discretions could prevent the transfer to the applicant.  The 1982 proclamation ‑ ‑ ‑

HAYNE J:   Mr Keith, what good does it do you if, at the end of the day, you have a declaration that your client had been entitled to have the mining interest transferred to it?  What is the practical consequence?

MR KEITH:   We say we are then entitled against the State of South Australia, to call for the transfer from BHP to the applicant to be registered on the mining register.

HAYNE J:   Assume that happens.  What good is that to you, when the proclamation says “Thou shalt not mine”?

MR KEITH:   One is not to know that the proclamation may be reversed yet again in the future.  Of interest to this applicant is that it is entitled to be the holder of this mining lease.  If circumstances change whereby technology allows the ore to be mined, or the necessity of mining the ore is such that the environmental concerns dictate that the mining proceed nevertheless in the Gammon Ranges National Park, this applicant ought to be the party entitled to mine that body of ore, not some other body who may be granted a lease in the future.  We are concerned to protect rights, which this applicant says, accrued by virtue of the transfer, necessarily requiring the consent of the Minister for Minerals and Energy, but we say, not within the purview of the Minister for Environment, to refuse the transfer.  If those rights accrued, the applicant is the entity entitled to be recognised as the holder of these mining leases, consequent upon the transfer from BHP. 

Should those rights at any time in the future be available for exercise, the applicant says it is the entity entitled to do so.  That is the utility of having these proceedings resolved.  It preserves that position should the circumstances of mining change at any time in the future.  The mining lease exists for a period of 21 years, with rights of renewal, rights of renewal which, so long as the holder makes application, the courts below recognise the Minister is bound to grant.

In that situation, the mining lease becomes an interest that ought not to be taken away peremptorily.  What the Minister for Environment does have power to do is regulate the exercise of those rights.  The applicant does not deny that right.  The applicant is content to rest on the fact that, if it is recognised as the holder of the mining lease, it will then need to deal with the environmental questions before those rights can be exercised. 

These proceedings raise the question of the applicant being shut out of a right to which it was entitled, apparently on the basis that the Government wishes to exclude mining in the national park.  That is a matter going to exercise of mining rights.  It ought not to be a basis for excluding the transfer of an interest in the mining rights from BHP to the applicant.

It is our case that the terms of the proclamation in 1982 deal properly and separately with the questions relating to the right of the Minister for Environment to regulate the question of exercise of these mining interests, which pre-existed the establishment of the national park. The proclamation of 1982 appears at page 85 and deals in paragraph 3 with the right to exercise the mining leases that are specified in Schedule 2 of the proclamation. Those leases, as specified in Schedule 2 of the proclamation are the leases to which the applicant claims to be entitled. Separately ‑ ‑ ‑

GUMMOW J:   Now, was BHP a party to this?

MR KEITH:   A party to the proceedings? 

GUMMOW J:   Yes.

MR KEITH:   No, it is not, your Honour.  I am informed that it was represented at the hearing.

GUMMOW J:   What does that mean?

MR KEITH:   Mr Walter informs me that BHP was served with the proceedings, but did not become a party.

GUMMOW J:   So they are not bound by any declaration?

MR KEITH:   I think that follows, yes, your Honour.  The effective relief would be an order directing the registrar under the Mining Act as to reinstating the leases and the proper identity of the proper holder of the mining leases.

GUMMOW J:   I understand that.

MR KEITH:   It is that form of rectification of the register is, what we say, would be adequate relief.  The basis on which ‑ ‑ ‑

GUMMOW J:   You do not seem to join necessary and proper parties under your procedures, but anyhow.

MR KEITH:   The basis on which the applicant asserts the Minister for Environment had no authority to exercise a discretion concerning the transfer from BHP to the applicant is a question of construction of the 1982 proclamation, whereby clause 3 deals with the existing leases, the pre‑existing leases, which are the leases the subject of this action.  Clause 4 deals with other rights that may be acquired or exercised in respect of the national park. 

It is our submission that the construction placed on that proclamation by the judge at first instance, and by the Court of Appeal, leaves no work for clause 3, and it is an incorrect construction.  Clause 3 expressly provides that the leases in Schedule 2 may be exercised subject to conditions, namely the Minister’s control.  That does not, in our submission, include the power in the Minister for Environment to regulate the transfer of those leases.  The transfer of those leases, nevertheless, requires the new holder to be subject to the powers of the Minister for Environment, and we do not object to that.  Our submission is that clause 4 does not cross over and deal with the pre‑existing leases specified in Schedule 2 ‑ ‑ ‑

GUMMOW J:   What is the point of general importance about all that?

MR KEITH:   The point of general importance relates to the administration of mining interests and the question of clarity of the procedures for transfer of mining leases whereby the Mining Act establishes the code for dealing in mining interests.  That topic is expressly dealt with in section 83, and any dealing in an existing mining lease requires the consent of the Minister for Minerals and Energy. 

GUMMOW J:   Well, that is not an unusual form of statutory arrangement, is it?

MR KEITH:   No it is not.  Our submission is that ‑ ‑ ‑

GUMMOW J:   Across the country?

MR KEITH:   Our submission is that the National Parks and Wildlife Act does not, in its terms, purport to cover the same territory and add a further layer concerning the transfer of mining leases just because they happen to exist in a national park, and it is that issue of the conflict between the two pieces of legislation that is of public interest and of sufficient importance to warrant the attention of the Court in granting special leave.

The administration of mining interests and the administration of mining legislation has, for many years been vested in the Minister for Minerals and Energy, and our submission is that that is the appropriate place for it, and that it is not appropriate by virtue of a misreading of the National Parks Act to add a further layer of administration to the transfer of mining interests.

We take issue with the proposition that the acquisition of mining interests within the national parks legislation includes transfer, when the topic of dealing in mining interests is separately and expressly dealt with in the mining legislation.  In that context, the use of “acquire” in the national

parks legislation does not warrant an inclusion of a right in the Minister for Environment to approve or otherwise, a transfer of the mining interest.

The question of transfer should, in our submission, be viewed this way.  The existence of a mining right is something that the Minister for Environment does have an entitlement to adjudge on the question of mining within a national park, but the transfer of an existing mining right is only something within the purview of the Minister for Minerals under the Mining Act.  That difference between those rights that already exist, before the land was declared a national park, and the transfer of those rights, is part of our submission. 

The transferee must be acceptable to the Minister for Minerals.  There is nothing to say that the transferee must be acceptable to the Minister for the Environment.  The other issues relating to the utility involve some questions about the right of BHP to withdraw.  We say those issues become alive in the event that the applicant is entitled to a transfer.  The applicant, upon receiving consent from the Minister has certain rights ‑ ‑ ‑

GUMMOW J:   Entitled to transfer from whom?

MR KEITH:   From BHP.  There is no dispute, in this case, that the applicant had a valid agreement with BHP, subject to obtaining the consent of the Minister.  The legislation provides the transfer would be void in the absence of that consent.  Once the consent is granted, it is our submission that BHP could not do anything to detract from its obligations to transfer and ‑ ‑ ‑

GUMMOW J:   Well, a court might want to hear BHP about that, that is what I was mentioning earlier to you.

MR KEITH:   Indeed, your Honour, but we only say that that issue arises on the respondent’s objection that the declaratory relief would be of no utility, where we say that is a matter of interpreting the conduct of BHP.  It is not on the issue about utility of the declaratory relief, something on which BHP would need to be heard.  May it please the Court.

GUMMOW J:   Yes, thank you.  Yes, Mr Walter.  We would like to hear you on the particular point concerning utility in this Court, practical utility of outcome.

MR WALTER:   Your Honour, the proclamation of 25 July 2002 effectively removes any possibility of any mining taking place within the Gammon Ranges National Park.  It may be a fine point to say the mining leases still exist, but the effect of the proclamation means that there is no possible ‑ ‑ ‑

GUMMOW J:   It said that they continue for some years, it is not?

MR WALTER:   Well, your Honour, BHP ‑ ‑ ‑

GUMMOW J:   But they have been sterilised in some way, as it were.

MR WALTER:   Yes, your Honour.  BHP applied for renewal for one year, not 21 years, and if it had been granted, that renewal would have expired on 7 February 2002 ‑ ‑ ‑

GUMMOW J:   We seem to have lost you.  That is better, yes.

MR WALTER:   I will repeat it.  BHP applied for a renewal for one year.  The mining lease expired on 7 February 2001 ‑ ‑ ‑

GUMMOW J:   Yes, that is right.

MR WALTER:   If it had been granted by the Minister after 7 February 2001, because there is provision in the Mining Act section 38(4) whereby, if the Minister has not determined an application, the renewal when it is made, commences from the date of expiry of the previous term. 
So in this case, if the renewal had been granted, it would have expired on 7 February 2002.

GUMMOW J:   Yes.

MR WALTER:   It is somewhat of a quandary - if the Court in appeal was minded to make an order, what would be the order, that the Minister do things that cannot be done because the lease is expired? It has expired on two grounds:  one, because it expired on 7 February 2001 because it was not renewed, the application was not renewed; the second reason is that it expired through the effluxion of time during the proceedings of these proceedings. 

GUMMOW J:   Yes, we do not need to hear you any more.  Thank you, Mr Walter.

MR WALTER:   Thank you, your Honour.

GUMMOW J:   Yes, Mr Keith?

MR KEITH:   Thank you, your Honours.  The holder of the lease was entitled to a renewal for 21 years.  The fact that BHP made a more limited application only adds a hypothetical to the question.  We object to the withdrawal of the application, and say that the position of the applicant is

that, were they the holder before it had expired, they would have been entitled to make an application for renewal.  We say that the conduct of BHP in withdrawing should not be a basis of which declaratory relief against the State of South Australia is refused, the conduct, in effect, only arising as a result of what the applicant seeks to review, namely, the unlawful decision of the Minister for Environment.

The only other point on which I wish to reply is not technically a reply.  If I may have the leave of the Court to intimate that, in our submission, were the Court minded to grant leave, BHP could be joined on the relevant issues, BHP having been involved in the proceedings at an earlier date.  It is not a case of bringing in a party who has not previously had notice of the proceedings.  May it please the Court.

GUMMOW J:   Thank you.

The particular questions which the applicant would seek to agitate have been overtaken by a subsequent proclamation under the National Parks and Wildlife Act 1972 (SA), having the effect of prohibiting mining in an area which was previously subject to the mining leases. It is in the renewal of these mining leases that the applicant asserts an interest. An appeal to this Court would only lead to relief having no sufficient practical consequences for the appellant to warrant any grant of leave. Accordingly, the application is refused with costs.

AT 2.30 PM THE MATTER WAS CONCLUDED