BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
NEWCREST MINING (WA) LIMITED and BHP MINERALS LIMITED v THE COMMONWEALTH OF AUSTRALIA and THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE (Matter No S 18/96); NEWCREST MINING (WA) LIMITED v THE COMMONWEALTH OF AUSTRALIA and THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE (Matter No S 16/92) Constitutional law - Mining
Constitutional law—Validity of proclamations made under National Parks and Wildlife Conservation Act1975 (Cth)—Whether s 51(xxxi) operates as a limitation on an exercise of the legislative power of the Commonwealth under s 122 of the Constitution. Constitutional law—Characterisation of a law capable of dual characterisation—Whether s 122 can be relied upon to the exclusion of s 51(xxxi) where a law is capable of dual characterisation. Constitutional law—Meaning of "acquisition of property" in s 51(xxxi) of the Constitution—Whether proclamation prohibiting mining effects an acquisition of mining tenements. Mining—Validity of mining leases—Mining leases purportedly renewed under Mining Ordinance 1939 (NT) after commencement of Northern Territory (Self- Government) Act 1978 (Cth)—Whether right of renewal in existence. Mining—Validity of mining leases—Whether government approval or authority necessary for renewal of particular lease—Whether renewal effective at time of Northern Territory (Self-Government) Act 1978 (Cth). Constitution of the Commonwealth, ss 51(xxxi), 122. Northern Territory (Self-Government) Act 1978 (Cth) ss 50(2), 70. Northern Territory (Administration) Act1910 (Cth). National Parks and Wildlife Conservation Act1975 (Cth). National Parks and Wildlife Conservation Amendment Act1987 (Cth). Mining Ordinance 1939 (NT). Mining Act1980 (NT).
Hearing
CANBERRA, 5-7 November 1996 (hearing), 14 August 1997 (decision) #DATE 14:8:1997
Representation: Matter No S 18/96 J J Spigelman QC with G A Flick SC for the first and second appellants (instructed by Clayton Utz)
B J Shaw QC with S J Gageler for the first and second respondents (instructed by Australian Government Solicitor)
Intervener:
T I Pauling QC with T J Riley and R J Webb intervening for the Attorney-General for the Northern Territory (instructed by the Solicitor for the Northern Territory)
Orders
Order: Matter No S 18/96 1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court, save in so far as they allowed the appeal and dismissed the cross-appeal to that Court, and in lieu thereof: (a) declare that immediately prior to the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 78-89 was still in force; (b) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 23, 25-28, 751-756 was still in force; (c) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), neither of the mining leases MLN 19 nor MLN 24…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Newcrest Mining (WA) Ltd v the Commonwealth [1997] HCA 38
Case
[1997] HCA 38
Decision Date
CaseChat Overview and Summary
In Newcrest Mining (WA) Ltd v The Commonwealth, the High Court of Australia considered the validity of proclamations made under the *National Parks and Wildlife Conservation Act 1975* (Cth) that affected mining leases in the Northern Territory. The dispute centred on whether these proclamations, which effectively prohibited mining activities, constituted an acquisition of property by the Commonwealth otherwise than on just terms, contrary to section 51(xxxi) of the Constitution. The court also had to determine the interplay between the Commonwealth's legislative power under section 122 of the Constitution (relating to territories) and the limitations imposed by section 51(xxxi).
The primary legal issues before the High Court were: (1) whether the proclamations made under section 7(8) of the *National Parks and Wildlife Conservation Act 1975* (Cth) effected an acquisition of property within the meaning of section 51(xxxi) of the Constitution; (2) whether section 51(xxxi) operated as a limitation on the legislative power of the Commonwealth under section 122 of the Constitution when a law could be characterised as having a dual character; and (3) the validity of certain mining leases and their renewals under Northern Territory legislation in light of the subsequent Commonwealth proclamations.
The Court reasoned that the proclamations, by prohibiting mining operations on the leased land, did constitute an acquisition of property for the purposes of section 51(xxxi). It held that section 51(xxxi) is a limitation on the legislative power of the Commonwealth, including when that power is exercised under section 122. The Court found that the power to make proclamations under section 7(8) of the *National Parks and Wildlife Conservation Act 1975* (Cth) was not exclusively referable to section 122, and therefore the requirement of just terms under section 51(xxxi) applied. The Court also considered the status of the mining leases, finding that some were still in force at the time of the relevant proclamations, while others had expired.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Federal Court in part. It declared that certain mining leases were still in force immediately prior to the proclamations made on 13 November 1989 and 21 June 1991, respectively. Crucially, it declared that the proclamations made on 13 November 1989 and 21 June 1991 were invalid to the extent that they effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms, as required by section 51(xxxi) of the Constitution. The Commonwealth and the Director of National Parks and Wildlife were ordered to pay the costs of Newcrest Mining (WA) Limited.
Orders
Orders of the court
Matter No S 18/96
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court, save in so far as they allowed the appeal and dismissed the cross-appeal to that Court, and in lieu thereof:
(a) declare that immediately prior to the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 78-89 was still in force;
(b) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 23, 25-28, 751-756 was still in force;
(c) declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), neither of the mining leases MLN 19 nor MLN 24 was any longer in force; and
(d) order that the costs of Newcrest Mining (WA) Limited and of BHP Minerals Limited of the appeal to the Full Court and of the proceedings to date before French J be paid by the Commonwealth and the Director of National Parks and Wildlife.
3. Liberty to apply on 7 days notice.
Matter No S 16/92
1. In respect of the matter reserved by order of the Chief Justice made on 21 May 1996, namely the question whether the proclamations made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) published in the Commonwealth of Australia Gazette on 12 June 1987, 22 November 1989 and 24 June 1991 are invalid by reason of s 51(xxxi) and s 122 of the Constitution of the Commonwealth:
(a) Declare that in respect of mining leases MLNs 78-89 the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.
(b) Declare that in respect of mining leases MLNs 23, 25-28, 751-756 the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.
(c) Order that the costs of Newcrest Mining (WA) Limited of the proceedings before the Full Court be paid by the Commonwealth and the Director of National Parks and Wildlife.