Mullavey v Haoma North West N.L

[1988] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl0 of 1988

B e t w e e n -

TERRANCE PATRICK MULLAVEY

Applicant

and

HAOMA NORTH WEST N.L.

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

TOOHEY J

Mullavey

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 1988, AT 12.49 PM

Copyright in the High Court of Australia

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MR A. CAMP:  May it please Your Honours, I appear in

this application for the applicant. (instructed

by Mossenson Szklarz & Co)

MR R. DAVIS: May it please the Court, I appear for the

respondent. (instructed by Keall Brindsen)

MASON CJ:	Yes, Mr Camp.
MR CAMP:	The starting point in this application,
Your Honours, is the decisions of the Full Court.
His Honour the Chief Justice at page 6 of the papers, found that trailings were:

"material above the natural surface" of the

land -

and

not "land" or "Crown land" within the

meaning of s. 18 of the 1978 Act.

And so an application in respect of what was

said to be land comprised of the tailings sitting
on what was the original natural surface was not

able to be made subject of an application for a

mining lease.

BRENNAN J:  Mr Camp, what are the provisions of the Act

which deal with strata leases?

MR CAMP:	Your Honour, there are none that expressly provide
for strata leases, and that, of course, is the
difficulty in the case in_attempting to set up
that the Full Court were wrong. But, as is
apparent from Their Honours' reasoning, there are none that provide expressly against it.

TOOHEY J: Well, your summary of argument goes further

than that, Mr Camp, does it not, that is

yourwritten sun:nnary, which is in terms that

the present Act contemplates an application for a mining lease in respect of different strata?

MR CAMP:	Yes. Your Honour, it is only said this way - and it was not intended that I mislead Your Honours - that the provisions of the Act
are such that the notion of strata applications, or strata titles - perhaps not a good phrase
to use - but titles in respect of different
strata of land are able to be made. And, in
particular, the second point is that that was more
readily apparent because of one or two
references in the 1904 Act.  But the 1904 Act
did not provide expressly either for strata
titles and the point is that by comparison the 1978 Act contemplates strata title.

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TOOHEY J:  How are tailings dealt with under the present

legislation?

MR CAMP:	Under the present legislation tailings are not -
that is to pre-existing tailings, that is,tailings
that came into existence prior to the Ac-.t ~.ornini:r1 . into effect - dealt with, except that the repealed Act icences
to treat tailings are preserved
by annual renewals. In the event of such a licence
not being pursued there is no statement about what
is to be done with tailings in the Act.
TOOHEY J:	Then coming back to the application we heard a
moment ago in which you were involved, there is
no transitional provision, I take it,which enables a licence to deal with tailings to be converted into some sort of mining tenement?
MR CAMP:	No, Your Honours.

TOOHEY: That of itself might suggest that the current Act

does not contemplate a mining tenement in respect

of tailing?

MR CAMP:  Not any special licence like the old Act did. In

my respectful submission the transitional provisions

dealing with tailings - in failing to provide for

what happens when the licence ends or what happens

in the case of tailings that existed from production

under the repealed Act are not - or in failing to

provide for such tailings, then it is simply not

possible to search around for any specific or

useful guidance on what was to be done. And the

answer, in my submission, f~llsto be determined

in the way that we approach it.

BRENNAN J:Mr Camp, if a mining lessee of land is entitled

to use, occupy and enjoy the land for mining

pu~poses under section 85(2)(a), how could a mining

lease confer the same right on a lessee of tailings?

Would you have both sets of work~n on the surface?

MR CAMP:	No, Your Honour, what I say is contemplated by
section 84 in the ability of the minister to apply limitations to the grant of the one enable the two to work together, much as did an old licence under the repealed Act.
BRENNAN J:	But surely the statutory right under section 85(2)

is not subject to ministerial limitation 1 is it?

MR CAMP:	The provision is, "or subject to the Act".
TOOHEY J:	To the Act?
MR CAMP:	Yes and,in my submission,that contemplates section 84 and the right of the minister to -

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BRENNAN J: What part of section 84 would empower the minister

to keep to,as it were, ordain the relative areas

and enjoyment of the two lessees?

MR CAMP:	Your Honours, it is the imposition of reasonable
conditions.

BRENNAN J: Under section 84(1) or 84(2)?

MR CAMP: Section 84(2). Although I concede that that would

be stretching the words of that subsection.

BRENNAN J: I must say that as present advised, it seems to me

that the argument which you are propounding would be

a recipe for mining chaos.

(Continued on page 5)

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MR CAMP:  Well, Your Honour, it is no more than it was

with the licences co-existing with the grant of

a mining lease in respect to the ground under tailings

under the repealed Act, simply the imposition of

rights of ingress and egress and so on deal with

the problem. The difficulty, the more real difficulty

under the Act, is how rights in respect of tailings

can be exercised if there is not provision for

a mining lease in respect of such land, if it is

land.

The only way in which there can be an exercise of

any powers to retrieve minerals from tailings is

by the express grant of a tenement, or by grant of

a tenement in respect of it. In my submission,

the words of section 85(1)(d) - - -

TOOHEY J:  You are speaking of the current Act, Mr Camp,

are you?

MR CAMP:  Yes, Your Honour. It describes the things that

are necessary or prescribes the power for applying
methods of mining, modes of mining in respect of
the land, but does not extend the meaning of the

land granted or the meaning of the word that the

land granted. The definition of "mining operations"

in section 8 is referring only to modes and

methods of mining and does not extend the power

to treat tailings in respect of land or to treat

tailings on land the subject of a mining lease.

TOOHEY J:  So you would say, I take it, that if your argument

is not upheld then in the case of mining operations

at any rate that began after the new Act came into

force, tailings could lie on the land indefinitely

and no one would have access to them, at least

through any form of mining tenement?

MR CAMP:  Yes, Your Honour, except without an unreal stretching

of the words and notions of section 85(1)(d).

TOOHEY J:

There would be nothing to stop the holder of the

mining tenement from granting a licence,

presumably?

MR CAMP:	The holder of a mining tenement - sorry?
TOOHEY J:	To grant a licence to someone to treat the tailings?

I do not mean within the framework of the Act but

just as a matter of contract.

MR CAMP:  Yes, that is right, nothing, if the holder has

the right to the tailings. What I am saying is

that the holder does not acquire the rights to the

tailings.

TOOHEY J:	Mr Camp, could you just take us for a moment to the transitional provisions that you have mentioned
in relation to existing licences to treat tailings,

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that is, licences granted under the 1904

Act?

MR CAMP:	That is transitional provision clause 7.
TOOHEY J:	It is part of that material we were looking at

in the last application, is it?

MR CAMP:  Yes. It is in schedule 2 to the 1978 Act.

TOOHEY J:  I am not sure that we - would you expect us to

have that material?

MR CAMP:  I understand that Your Honours have the original

form of the second schedule but not the most two

recent amendments. It is very simple in its terms,

Your Honours. It grants a right to annually renew a licence to treat tailings and it grants a right

to have the renewal retrospectively granted - I use

the word "retrospectively" to mean where the

application for the renewal is made after its

expiry then the minister can still renew the

application back to its annual renewal.

TOOHEY J:  But, I suppose,by definition, the transitional

provisions are only looking at the renewal of

licences that were in existence under the 1904

Act?

MR CAMP:  Yes, that is correct, Your Honour. There is

no provision for what is to be done when the tailings'

licence expires and the tailings are sitting on land.

What I am saying is section 85(1)(d) does not

automatically pick up where a licence expires and

while it is a very fine thread that I have got

to pull through the .provisions of the Act, I am

saying that it is really at that point where I

have to start looking for comparisons with the old

Act.

(Continued on page 7)

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MASON CJ: Mr Camp, under the old Act the Crown had absolute

property in tailings left on land after the expiry

of a mining lease or mining tenement.

MR CAMP:	Yes, that is correct.
MASON CJ:	The old Act is repealed, the new Act contains

no provisions with respect to property in tailings.

What is the effect of all that on the property in the tailings that the Crown previously held prior to the repeal of the old Act?

MR CAMP:  The Crown retains the property in them.

TOOHEY J: Do you mean after the lease comes to an end?

MR CAMP: After the licence comes to an end?

TOOHEY J:	No, under the new Act.
MR CAMP:	I am sorry, Your Honour. Is Your Honour referring
me to tailings produced under the new Act?

MASON CJ: No, I am referring to tailings that were in

existence on land prior to the introduction,

the coming into operation of the new Ac~ and
tailings that were in existence on land that

was the subject of annex by a mining tenant.

MR CAMP:	Yes, they became the absolute property of the
Crown and remain so.
MASON CJ:	But why are they still the property of the Crown

when the statute that gave property to the Crown

has been repealed?

MR CAMP:	In my submissioq the statute really did not have
to do that to achieve the result and that it did
was superfluous, if you like, to this extent
that once abandoned, in my submission, tailings
would become land and there is no useful authority
it simply cannot be otherwise.
in that question except that, in my submission,

MASON CJ: If abandoned tailings became land, why would

not the subsequent grant of a mining lease give
the lessee rights of occupation and enjoyment

with respect of the tailings?

MR CAMP:	Because the regulations expressly preserved -
by regulation 1O6A, expressly preserved to the Crown the tailings and that is why the preservation
in 1O6A was necessary, in my submission.
BRENNAN J:	1O6A of the new regulations?

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MR CAMP:	No, 0f the 1904 Act.
MASON CJ:	The 1904 regulations.
MR CAMP:	Yes.
TOOHEY J:	But they have gone.
MR CAMP:	Yes, I understand Your Honour the Chief Justice
to be referring me to this question of tailings
under the old Act.

MASON CJ: Yes, but I am interested in knowing what is

the title to the tailings and what is the right
of the present holder of a mining lease under
the new legislation to the use and enjoyment

of that part of the land that consists of abandoned

tailings? I can understand that 106A had effect

under the old Act as you have said it has but,

of course, as Justice Toohey has pointed out

to you, that is no longer with us, with the old

Act it went.

MR CAMP:	No, and all I am saying is that under the new
Act abandoned tailings remain land and necessarily
the property of the Crown.

MASON CJ: That brings me - but why, necessarily, property

of the Crown?

MR CAMP:	That is a difficult question, Your Honour.
TOOHEY J	If you are right it does not help you, does

it, because if you look at section 85 of the

new Act:

a mining lease authorizes the lessee thereof

and his agents and employees on his behalf

to .....

(b) take and remove from the land any minerals

and dispose of them;

So would that not extend to any minerals to be

found in tailings as well as any that might be

found underground?

(Continued on page 9)

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MR CAMP:  No, my submission - was that section 85 you were

referring to?

TOOHEY J:  Section 85, yes.

MR CAMP: No, that only applies to activity under the new

Act. It does not contemplate - - -

TOOHEY J:  Yes, I know. That is what I am directing the comment

to.

MR CAMP:  Yes, and I agree with Your Honour, it does not

necessarily work in our favour; if that is so.

TOOHEY J:  Whether you are talking about tailings that came

into existence 20 years ago, or tailings that have been

produced in a mining operation since the new Act came

into existence, if it is land, as you appear to concede

it to be, why is it not simply part of the mining lease
granted to the holder of the mining lease which entitles
him to take and remove any minerals, whether they be
found in the tailings dump, or whether they be found

underground?

MR CAMP:  There is two points to the answer, Your Honour.

Firstly, tailings under the new Act are dealt with in section 114, but I do not want to go to them to

distract from the answer. The difficulty begins, in

my submission, with the 1978 Act failure to - - -

TOOHEY J:	Did you mean section 114?
MR CAMP:	Yes, section 114(7). It refers to the leaving of

tailings produced under the new Act and refers to them

becoming absolute property of the Crown. The

difficulty begins with the expiry of a former Act,

or a repealed Act, licensed to treat tailings, that is

one is not renewed under transitional provision,

clause 7. In my submission, the fact that when the

licence expires the tailings are left in limbo - unless my constructin of the 1978 Act is right -

that leads to the argument that we put that one looksto

the Lntention of the Act really gleaned from what is

possible under the Act.

BRENNAN J:  Does not section 114(7) and section 114(8)

clearly indicate that the land on which the tailings

stand after the mining tenement has expired, or the

land which is used for the purpose of treating tailings

is, in neither case, land which is the subject of a

mining tenement? In other words, the proposition

that tailings themselves can be land seems to be

inconsistent with the structure of section 114(7) and

section 114(8)?

MR CAMP:  Yes, Your Honour, I agree with that, and as it was

under the old Act, tailings when produced and in the

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hands of the producer were not land but chattel.

It is only upon the abandonment that they become land.

BRENNAN J:  Here, even on the abandonment, or at least on the

expiry under subsection (7) the tailings do not become

land, do they?

MR CAMP:  I do not immediately see why not, Your Honour. I

am not saying I disagree.

BRENNAN J:  Perhaps because the notion is that the mining

tenement on the land has expired, and yet he who was

the holder of the mining tenement is being given a

right which is not a mining lease to treat the

tailings.

MR CAMP:	Yes, but that is a right in the producer.
BRENNAN J:	Yes.
MR CAMP:	And one assumes at once if that right is not taken up,

then the tailings are abandoned and become land.

Your Honours, the only real difficulty that presents

itself is really whether there is something repugnant

about the notion of dual, or of overlying lease~ but, in my submission, it ought not to be thought to be so,

given that there is in fact no difference between a

licence to treat tailings or a lease to treat tailings

or land the subject of them. Of course, I do not

underestimate the difficulty of establishing that the

Full Court was wrong but, in my submission,what does

establish the wrong is the repugnant notions that lie

if you apply any of them or that remain if you

apply any of them.

(Continued on page 11)

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MASON CJ: But, Mr Camp, is there not extraordinary difficulty

in the notion that you could get a lease of tailings?

At the moment we are proceeding rather on the

assumption that tailings would necessarily be in

a clearly defined hillock but tailings may be strewn

out over the surface in an almost unidentifiable

way. The notion of a mining lease in respect of

tailings presents extraordinary problems.

MR CAMP:	No more than did the notion of a tailings licence,
with respect, Your Honour.  The lease is a statutory
lease, it is not one which one ought to - I agree
that when you first start thinking about a lease
that presents itself as a problem but upon a
consideration of the relevant provisions, it does
not.  And the notion of a lease is really no different
to the notion of a licence,in my respectful submission.

BRENNAN J:  Except for the provisions of section 85 which is

you are putting two people with the statutory rights

in 85 in possession of the same piece of land -

possession of the same area I should say.

MR CAMP: With respect, not the same land. It is separate

land - - -

BRENNAN J: No. I said "in respect of the same area". Think

of the arguments about the man who wants to sink

his shaft and he has to go through the tailings

of the person who has the tailings lease.

. . . . . of the tailings stopping him from sinking

his shaft?

MR CAMP:	No.
BRENNAN J:	Why not?
MR CAMP:	Not if there is a restriction on the grant that enables him to do that.

BRENNAN J:  Under section 84?

MR CAMP:	I would see the difficulty under section 84 and
the power of the minister to grant a mining lease
is granted under section 75 and it is on recommendation
from the warden, of course. In my submission those provisions can be construed so as to enable the recommendation and the grant to refer to and include limitations on the grant that enable activity in
respect of land underneath the land that is subject
of the tailing~ or otherwise the activity in treating the tailings.
BRENNAN J:	That is the only way that your submission could

work, is it?

MR CAMP:  That is the only way, yes. If it please Your Honours.

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TOOHEY J:	Mr Camp, does the grant of a mining lease in so
far as the Act is concerned carry with it the right to mine to a particular depth?
MR CAMP:	No.  In respect of a mining lease, not generally,
but in respect of a mining lease granted under private land the right is to mine only within
30 metres of the surface without - - -
TOOHEY J:	Yes, I appreciate that but in relation to Crown

land?

MR CAMP:	In respect of a mining lease granted under the
general purpose lease the limitation is to the depth of the general purpose lease which is
15 metres.
TOOHEY J:	What about an ordinary mining lease?
MR CAMP:	No.  There is no limitations.
TOOHEY J:	So you can see the difficulty that the Act not

having said anything in this regard about tailings,

if you got a mining lease in respect of tailings -

unless the lease in some way restricted your
operations-the rights that you would get would

appear to be no different to the rights held by the holder of the mining lease who acquired the lease for the purpose of mining underground.

MR CAMP:  Only in so far as the grant was limited.

TOOHEY J: Yes, that is what I foreshadowed, that the grant

itself would have to identify tailings by name

and by description.

MR CAMP:	Yes, but if the grant was only in respect of the
tailings then, of course, one would not need a
restriction on depth because it would only be in
respect of the tailings that the lease was granted.
Those are my submissions, Your Honours. (Continued on page 13)

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MASON CJ:	Thank you, Mr Camp.	Yes, Mr Davis?

MR DAVIS:  If it please Your Honours. Your Honours, it

is the respondent's submission that tailings

were not land for the purposes of the

MINING ACT 1904, the old Act,and it is our

submission that the reasons given by

His Honour Mr Justice Brinsden in the Full Court,

set out at page 16 of the application book are,

with respect, correct.

I also refer the Court to sections 111 and 112 of the old Act where a distinction between

the land on which tailings sit and the tailings
themselves is, in my submission, clearly drawn.

In section 111 there is reference to tailings

on the one hand, and again, on the land on which

they sit. The same reference, of course, is

included in section 112.

Your Honours, it is further submitted that

for the purposes of this application it is

immaterial whether or not tailings are to be

regarded as land under the new Act or not. If

tailings are not to be regarded as land, as it was

found by the Chief Justice and Mr Justice Brinsden

in the Full Court, then Division 3 of Part IV

of the new Act has no application whatever because

mining leases can only be granted with respect

to land. Now, if tailings are to be regarded

as land for the purposes of the new Act, as the
applicant asserts, then the respondent makes

three submissions.

First, that on the commencement of the new

Act the respondent's two gold mining leases were deemed to be mining leases under the new

Act pursuant to the transitional provision clause 2(1) of the second schedule. The new

deemed mining leases were subject to the terms,

conditions and encumbrances to which they were

subject under the old Act in so far as those
terms, conditions and encumbrances were not

inconsistent with the new Act. That, again,

is in transitional provision clause 2(1).

The new Act, of course, makes no provision for any distinction between tailings and the

land on which they lie, licences to treat

tailings at all, other than in section 114 on the

expiry of the mining lease, nor for the grant of

mining leases over different strata on a single

tenement. In that respect, I refer the Court
to the reasons of His Honour Mr Justice Wallace

in the application book at page 9.

So, consequently, Your Honours, it is the respondent's submission that a reservation to

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the Crown of property in tailings, as included

in section 112 and regulation 106A, which

were not land under the old Ac4 is inconsistent

with the new Act and consequently the reservation

to the Crown is not a condition, term or

encumbrance which is carried through under

transitional provision 2(1). Such a reservation

to the Crown is, in my submission, Your Honours,

also inconsistent with section 85 of the Act,

which has been referred to already, and particularly,

85(l)(d), 85(3) and the definition of mining

operations contained in section 8(1). Section 85(l)(d)

does empower the holder of a lease to:

do all acts and things that are necessary

to effectually carry out mining operations

in, on or under the land.

Section 85(3) makes:

the rights conferred by -

the whole of section 85 -

exclusive rights for mining purposes in

relation to the land in respect of which

the lease was granted.

And, of course, mining operations are defined

in 8(1) of the Act in terms sufficiently wide

to permit the treatment of tailings.

That is the respondent's first submission,

Your Honours, with respect to a situation where

tailings are regarded as land for the purposes

of the new Act.

(Continued on page 15)

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MR DAVIS (continuing): Secondly, it is submitted, that in

any event the respondent had a right to mark out
and to apply for a mining tenement under and in

accordance with the new Act in priority to any other

person. For that right, Your Honours, I refer you

to transitional provision 2(1). At the end of

that provision it states that the lease, the new

deemed mining lease:

Shall remain in force for the unexpired
period for which it was granted or renewed
under the repealed Act and shall then
expire and while any such lease is in
force the holder thereof has the right in
priority to any other person to mark out
and/or apply for a mining tenement under and
in accordance with this Act in respect of the land

or any part thereof which is the subject of such

lease.

That right, Your Honours:

in priority to any other person -

is -

to mark out and/or apply for a tenement

under and in accordance with this Act.

So it converts what was essentially a deemed mining

lease into a mining lease granted under the new Act.

That is, of course, precisely what the respondent did.

MASON CJ:	Mr Davis, the Court need not trouble you further.
MR DAVIS:	If it please the Court.
MASON CJ:	Mr Camp, do you wish to reply?
MR CAMP:	No, Your Honour.

MASON CJ:  The Court is of opinion that the decision of

the Full Court is not attended with sufficient doubt
to justify the grant of special leave to appeal.

The application is therefore refused. Again, you

cannot resist an order for costs, Mr Camp?

MR CAMP:  No, Your Honour.

MASON CJ:  The application is refused with costs. The Court

will now adjourn in order to reconstitute for the

next case.

AT 1.28 PM THE MATTER WAS ADJOURNED SINE DIE

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