State of New South Wales v Cadia Holdings Pty Ltd - [2009] NSWCA 174

No judgment structure available for this case.

Appeal Outcome: Special leave granted by the High Court, 11 December 2009, s48/2009Judgment reserved, 10 March 2010 [2010] HCATrans 43

New South Wales

Court of Appeal

CITATION: State of New South Wales v Cadia Holdings Pty Ltd [2009] NSWCA 174

HEARING DATE(S): 18 March 2009

JUDGMENT DATE:
1 July 2009

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 94; Handley AJA at 126

DECISION: 1 Allow the appeal and set aside the orders and declarations made in the Equity Division on 16 June 2008.
2 Declare that the copper in the specified land is a publicly owned mineral for the purposes of the Mining Act 1992.
3 Order that the respondents repay to the Minister all moneys paid to them in execution of the judgment in the Court below together with interest from the date of such payment until the moneys are repaid, calculated at the rate prescribed in the Fifth Schedule to the Uniform Civil Procedure Rules 2005.
4 Order the respondents to pay the appellants’ costs of the appeal and in the Court below.

CATCHWORDS: CONSTITUTIONAL LAW - the non-judicial organs of government - the Crown – prerogative rights of the Crown – abrogation and modification of prerogative by statute - royal mines and minerals – Royal Mines Acts 1688 and 1693 - CONSTITUTIONAL LAW - imperial, colonial, state and Commonwealth Constitutional relationships - Imperial legislation – reception and operative effect in New South Wales – Royal Mines Acts 1688 and 1693 - ENERGY AND RESOURCES - minerals – ownership of minerals under prerogative – scope of prerogative over minerals intermixed with gold and silver - s 379 Mining Act 1992 - REAL PROPERTY - general principles - Crown grants – royal minerals need not be expressly reserved to the Crown - STATUTORY INTERPRETATION - acts of parliament – interpretation – rules of construction – purposive interpretation – acts of constitutional significance - Royal Mines Acts 1688 and 1693 - STATUTORY INTERPRETATION - acts of parliament – interpretation – utility of repealed statute in interpretation of subsisting statute.

LEGISLATION CITED: Act of Settlement 1700 (UK)
An Act to prevent Disputes and Controversies concerning Royal Mines, 5 Wm & M. c. 6 (1693) (UK)
An Act to repeal the Statute made in the fifth Year of King Henry the Fourth, against the multiplying Gold and Silver, 1 Wm & M. c. 30, (“Royal Mines Act”) (1688) (UK)
Australian Courts Act 1828 (9 Geo. IV, c 83) (UK)
Bill of Rights Act 1688 (UK)
Constitution Act 1855
Crown Lands Alienation Act 1861
Crown Land Sales Act 1842, 5 and 6 Vic c 36
Gold Fields Act 1861, 25 Vic 4
Gold Fields Act 1866, 30 Vic 8
Gold Fields Management Act 1852, 16 Vic 43
Gold Fields Management Act 1857, 20 Vic 29
Habeas Corpus Acts 1640, 1679 (UK)
Imperial Acts Application Act 1969
Interpretation Act 1987
Magna Carta 1297 (UK)
Minerals (Acquisition) Ordinance 1953 (NT)
Mining Act 1874, 37 Vic 13
Mining Act 1906
Mining Act 1973
Mining Act 1992
Treason Act 1702 (UK)

CASES CITED: Attorney General v Brown (1847) 1 Legge 312
Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508
Attorney General v Great Cobar Copper Mining Co. (1900) 21 NSWLR 351
Attorney General v Morgan [1891] 1 Ch 432
Attorney General of British Columbia v Attorney General of Canada (1889) 14 App Cas 295
Barton v The Commonwealth (1974) 131 CLR 477
Beaumont v Yeomans (1934) 34 SR (NSW) 562
British Coal Corporation v The King [1935] AC 500
Brodie v Singleton [2001] HCA 29; 206 CLR 512
Cadia Holdings Pty Ltd v State of NSW [2008] NSWSC 528
Case of Mines (The Queen v The Earl of Northumberland) (1568) 1 Plowden 310; 75 ER 472
The Commonwealth of Australia v The State of New South Wales (1923) 33 CLR 1
Edwards v Attorney General for Canada [1930] AC 124
In re De Keyser’s Royal Hotel Ltd; De Keyser’s Royal Hotel Ltd v The King (1919) 2 Ch 197
Jumbunna Coal Mine NL v Victoria Coal Miners’ Association (1908) 6 CLR 309
Kean v The Commonwealth (1963) 5 FLR 432
London & West Australian Exploration Co Ltd v Ricci (1906) 4 CLR 617
Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657
Mathieson v Burton (1971) 124 CLR 1
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Minister for Mineral Resources v Brantag Pty Ltd [1997] NSWCA 207; 8 BPR 15,815
R v Lavender [2005] HCA 37; (2005) 222 CLR 67
Ready Mixed Concrete (Victoria) Pty Ltd v FCT (1969) 118 CLR 177
The Rebeckah (1700) 1 C Rob 226; 165 ER 158
Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177
Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1
Woolley v Attorney General (Vic) (1877) 2 App Cas 163
Woolley v Ironstone Hill Lead Gold Mining Company (1875) 1 VLR(E) 237

PARTIES: State of New South Wales (First Appellant)
Minister for Mineral Resources (Second Appellant)
Cadia Holdings Pty Ltd (First Respondent)
Newcrest Operations Ltd (Second Respondent)

FILE NUMBER(S): CA 40266/ 08

COUNSEL: MG Sexton SC SG, HR Sorensen (Appellants)
AJL Bannon SC, RC Scruby (Respondents)

SOLICITORS: Crown Solicitor (Appellants)
Marque Lawyers (Respondents)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 4253/ 04

LOWER COURT JUDICIAL OFFICER: Hamilton J

LOWER COURT DATE OF DECISION: 30 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 528

- 6 -

CA 40266/08

SPIGELMAN CJ
BASTEN JA
HANDLEY AJA
Wednesday 1 July 2009

State of New South Wales v Cadia Holdings Pty Ltd

FACTS

The first respondent is the holder of mining leases granted under the Mining Act 1992 (the “Act”) with respect to land owned by the second respondent at Cadia Hill, near Orange. The mine is operated to extract both gold and copper and it is undisputed that it is neither possible nor financially viable to mine for one without the other.

In respect of ‘specified lands’, which are the portion of the mine the subject of this dispute, there was no express reservation of minerals in the land grants made between 1852 and 1881.

The gold is a ‘publicly owned mineral’ for the purposes of the Act and accordingly the State is entitled to retain all royalties paid in respect of the gold (s 282). The issue which arises for determination on this appeal is the ownership of the copper. If the copper is a ‘privately owned mineral’ for the purposes of the Act the State must repay to the owner seven-eighths of the royalties (s 284). Royalties of about $8.7 million had been paid in relation to copper.

The submissions proceeded by reference to the royal prerogative at common law and any relevant effects of the Royal Mines Acts of 1688 (1 Wm & M. c.30) (UK) (the “1688 Act”) and 1693 (5 Wm & M. c.6) (UK) (the “1693 Act”) upon that prerogative.

HELD

Per Handley AJA, Basten JA agreeing

Case of Mines

The

Case of Mines (The Queen v The Earl of Northumberland)

Attorney-General v Morgan

3 The Acts do not require characterisation of a mine as exclusively a “gold” or “copper” mine. The Cadia mine cannot be fairly characterised as a “copper mine”. It is best described as a “gold-copper mine”. Since the Cadia mines cannot be characterised just as copper mines, they remain gold mines within the range of the prerogative and the Crown is entitled to the copper as well as the gold. [125] [145]-[147] [149] [156]

Barton v The Commonwealth

Woolley v Attorney-General of Victoria

Minister for Mineral Resources v Brantag Pty Ltd

5 The 1693 Act, though subsequently repealed, remains relevant to the determination of the issues because it was in force at the time of the land grants. [125] [139]

Per Basten JA

Case of Mines (The Queen v The Earl of Northumberland

Woolley v Attorney-General (Vic)

Wade v New South Wales Rutile Mining Pty Ltd

7 Although it is no longer in force, the 1693 Act remains a relevant consideration to the extent that it clarifies the operation of the 1688 Act. [111]

8 The 1688 and 1693 Acts served to limit the concept of a royal mine but did not abrogate the prerogative in respect of royal mines. The purpose of the Acts was to respond to technological developments which had allowed for the extraction of gold and silver where it had not previously been possible. The question of how much gold or silver might be found in a ‘mine of copper’ without it being a royal mine was left open. [103] [105] [109]-[110] [117] [120]

Case of Mines

(The Queen v The Earl of Northumberland

Per Spigelman CJ (dissenting)

Case of Mines

(The Queen v The Earl of Northumberland

London & West Australian Exploration Co Ltd v Ricci

Beaumont v Yeomans

Mathieson v Burton

R v Lavender

Jumbunna Coal Mine NL v Victoria Coal Miners’ Association

British Coal Corporation v The King

Edwards v Attorney-General for Canada

13 The 1688 Act was constitutionally significant because it provided that the Crown’s prerogative no longer enabled expropriation of property without compensation. The provision of the Crown’s right to purchase royal minerals at fair value (in the 1688 Act) or mixed mineral ore at a fixed value (in the 1693 Act), indicates the purposes of the legislative scheme: to encourage the development of the mining industry and to redress a constitutional imbalance between King and subject. Construing the Act as narrowly as the appellant contended would not serve these purposes. [62] [81]-[82] [89]

14 The 1693 Act uses language of ownership with respect to, relevantly, copper. This informs the interpretation of the words “mine of copper” in the 1688 Act. [32] [90]

Case of the Mines of Sir Carbery Price

The Mine Adventure; Or an Expedient

An Essay on the Value of the Mines Late of Sir Carbery Pryse

16 The 1688 and 1693 Acts abrogated the Crown’s prerogative ownership of copper admixed with gold. The copper in the Cadia mine is a “privately owned mineral” for the purposes of the Mining Act . [92]

ORDERS

(1) Allow the appeal and set aside the orders and declarations made in the Equity Division on 16 June 2008.

(2) Declare that the copper in the specified land is a publicly owned mineral for the purposes of the Mining Act 1992.

(3) Order that the respondents repay to the Minister all moneys paid to them in execution of the judgment in the Court below together with interest from the date of such payment until the moneys are repaid, calculated at the rate prescribed in the Fifth Schedule to the Uniform Civil Procedure Rules 2005.

CA 40266/08

SPIGELMAN CJ
BASTEN JA
HANDLEY AJA

Wednesday 1 July 2009

State of New South Wales v Cadia Holdings Pty Ltd

Judgment

: The single issue in this appeal is the determination of the ownership of copper in land near Orange known as the Cadia Hill Mine.

The Legislation

2 The first respondent (“Cadia”) is the holder of mining leases granted under the Mining Act 1992 (“the Act”) with respect to land owned by the second respondent. Both copper and gold are extracted from the relevant part of the mine and there is no dispute that it was not possible to mine for one without the other.

3 The Act requires the holder of a mining lease to pay to the Crown a royalty on all minerals recovered. The Crown is entitled to retain all royalties paid in respect of any “publicly owned mineral” (s 282). However, the Crown must repay to the owner of the mineral seven-eighths of the royalties paid in respect of any “privately owned mineral” (s 284). The relevant focus of the Act is on “minerals”, not the ore containing minerals.

4 The Dictionary to the Act states:

“‘Mineral’ means any substance prescribed by the regulations as a mineral for the purposes of this definition …

…

‘Privately owned mineral’ means a mineral that is not owned by, or reserved to, the Crown.

…

‘Publicly owned mineral’ means a mineral that is owned by, or reserved to, the Crown.”

5 That a single body of ore may contain both kinds of minerals is expressly envisaged by the Act’s regulation of exploration licenses. Section 24(2) of the Act provides:

“24(2) An exploration licence may be granted in respect of any group or groups of minerals, regardless of whether the minerals in any such group are publicly owned, privately owned or partly publicly and partly privately owned.”

6 The parcels of land, part of the Cadia Hill Mine, to which these proceedings relate were the subject of Crown grants between 1852 and 1881. Those particular grants did not reserve minerals, relevantly, copper, to the Crown. Accordingly, this case turns on whether, notwithstanding the lack of express reservation in the leases, the copper was ‘owned by the Crown’ within the definition of “publicly owned mineral”.

7 There is no dispute that the Crown owned the gold. It is well established that the right of the Crown to gold does not have to be reserved in a grant. (See the Case of Mines (The Queen v The Earl of Northumberland) (1568) 1 Plowden 310 at 337; Woolley v Ironstone Hill Lead Gold Mining Company (1875) 1 VLR(E) 237 esp at 247-248; approved on appeal in Woolley v Attorney General (Vic) (1877) 2 App Cas 163 at 166-167; Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 186).

8 This principle is of particular significance in Australia where all interests in real property can be traced to a Crown grant. Although, as shown in the Case of Mines, there were Crown grants in England, that was not generally the case. In Attorney General v Brown (1847) 1 Legge 312, in what Windeyer J described as a “notable judgment” in Wade supra at 194, Stephen CJ said at 318:

“The right of the people of England to their property, does not in fact depend on any royal grant, and the principle that all lands are holden mediately or immediately of the Crown flows from the adoption of the feudal system merely.” (References omitted.)

Woolley

9 By way of reinforcement of this principle of interpretation and, perhaps, alternatively, s 379 of the Act provides:

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

10 That formulation is of long standing in Australian mining statutes. (See Royal Proclamation by Governor FitzRoy, 22 May 1851, The New South Wales Government Gazette (Supp) (1) (1851); Gold Fields Management Act 1852, 16 Vic 43 s 29; Gold Fields Management Act 1857, 20 Vic 29 s 31; Gold Fields Act 1861, 25 Vic 4 s 36; Gold Fields Act 1866, 30 Vic 8 s 26; Mining Act 1874, 37 Vic 13 s 5; Mining Act 1906 s 8; Mining Act 1973 s 4.)

11 The reference to “gold mines “ and “silver mines” is a reference to the gold or silver in situ. As Windeyer J put it in Wade supra at 194-195:

“ … a mine often means an unopened and unworked seam, lode, or deposit of metallic ore in the ground … It is in this sense that … the present Act in s 8 speaks, of the royal prerogative in respect of mines of gold and silver.”

12 It was common ground that the prerogative ‘in respect of gold mines’ encompassed ownership of the gold. As Knox CJ and Starke J put it in The Commonwealth of Australia v The State of New South Wales (1923) 33 CLR 1 at 19: “It has always been recognised that the … royal metals wherever found in Australia are vested in the King”. I note that what Molesworth J referred to as the Crown’s entitlement to “gold and silver mines” in Woolley (1875 supra at 247) was referred to in the Privy Council on appeal as “the prerogative right of the Crown to gold and silver found in mines” and “the rights of the Crown in the precious metals to be found under the soil”. (Woolley 1877 supra at 166, 167.) An issue that has been raised in this respect, as to the effect of the recognition of native title on land that was not the subject of a grant, does not arise. (See Mark Newton “Native Title and the Royal Metals” (2001) 6 (1) Australian Indigenous Law Reporter 1.)

13 At first instance, Hamilton J found, on the basis of relevant case law and legislation impinging upon the prerogative rights of the Crown, that the respondents were the owners of the copper and, accordingly, were entitled to the payment of seven-eighths of the royalty paid on the copper. (See Cadia Holdings Pty Ltd v State of NSW [2008] NSWSC 528.)

14 Prior to the decision of Hamilton J, royalties amounting to approximately $8.76 million had been paid to the Crown in relation to copper. An amount of approximately $8.69 million, not in dispute, was paid in relation to gold. The quantity of copper extracted from the relevant land during the relevant period was about 125,000 tonnes. The quantity of gold was about 835,000 ounces.

15 The issue on appeal is whether copper, present in ore together with gold, is a ‘mineral that is owned by the Crown’ within the definition of “publicly owned mineral” in the Act. The answer to that question turns on the implicit reservation of gold in the Crown grants and whether the Crown’s prerogative in respect of gold mines encompasses ownership of a mineral admixed with the gold in the ore, where each mineral is present in significant proportions.

The Prerogative

16 It was decided in the Case of Mines (The Queen v The Earl of Northumberland) (1568) 1 Plowden 310; 75 ER 472 that, where ore contains a royal mineral and another mineral, relevantly copper, the Crown owns the entirety of the ore irrespective of the proportion of the royal mineral in the ore.

17 The majority judgment in the Case of Mines may have suggested that even a trace of gold or silver was sufficient to vest ownership of the whole of the ore in the Crown. This was modified so that the Crown would only acquire the ore if the value of the royal metal exceeded the cost of separation. As Bainbridge put it (William Bainbridge, A Practical Treatise on the Law of Mines and Minerals, (1841) Butterworth) at 42, after referring to the Case of Mines:

“This decision occurred in the time of Queen Elizabeth, when the prerogative of the Crown was perhaps at its greatest height, and the opinion of the nine judges does not appear to have gained the acquiescence of more recent lawyers. In 1640, the opinion of fifteen leading counsel, amongst whom are the names of Glanvil, Herbert, Grimston, and Maynard, was taken upon the subject. These gentlemen were all of opinion, that, although the gold or silver contained in the base metal of a mine in the hands of a subject, be of less value than the base metal, yet if the gold or silver countervail the charge of refining it, or be of more worth than the base metal spent in refining it, this is a mine royal, and as well the base metal as the gold and silver in it belong to the prerogative of the Crown. [Heton’s Accounts of Mines, p. 21.] It may be inferred, from this opinion, that if the gold or silver did not repay the charges of separation, those metals were not considered as belonging to the Crown.”

18 The prerogative right to ownership of a mineral admixed with gold in ore, as established by the Case of Mines, was further modified by statute: first in 1688 and, secondly, in 1693.

19 The background to the 1688 Act is set out in Bainbridge’s authoritative text, at 43:

“… the spirit of mining adventure threatened to become extinct from the vexatious and uncertain state of the law. The right of entry in search of royal mines was oppressive in the extreme, for no damages were paid, and any mine which might have been discovered at great expense, and after infinite labour, seemed liable to be claimed as a royal mine. Valuable mines were concealed, and there was universal distrust. Such a state of things called loudly for a legislative remedy.”

20 This analysis was based, in part, on a contemporaneous text, Thomas Heton, Some Account of Mines and the Advantages of Them to this Kingdom (1707). That author described the position before the Acts of 1688 and 1693 at 33:

Royal Mines

Scene

before

now

formerly,

Mine-Royal,

Her Majesties

Act

21 The 1688 Act, An Act to repeal the Statute made in the fifth Year of King Henry the Fourth, against the multiplying Gold and Silver, 1 Wm & M. c. 30, usually referred to as the Royal Mines Act (the “1688 Act”) (UK), repealed legislation said to limit mining and metallurgy in England and, relevantly, provided:

Mint

Tower of London

Sect 4 Provided also, and be it further enacted, that no mine of copper, tin, iron, or lead, shall hereafter be adjudged, reputed or taken to be a Royal mine, although gold or silver may be extracted out of the same.”

22 The expression “mine of copper” in s 4 of the 1688 Act may not have clearly indicated the position with respect to the ownership of the base metal in mixed ore. However, the fact that the Act is concerned with mixed ore is confirmed by s 3 which requires all gold or silver extracted to be delivered to the Tower of London for acquisition by the Crown.

23 In Attorney General v Morgan [1891] 1 Ch 432 it was determined that ore with minor amounts of copper did not answer the description of a “mine of copper” within s 4 of the 1688 Act. However, that is not the present case.

24 The 1693 Act is entitled An Act to prevent Disputes and Controversies concerning Royal Mines, 5 Wm & M. c. 6 (the “1693 Act”) (UK). I will refer to the background of the Act below.

25 After setting out s 4 of the 1688 Act, the 1693 Act provided:

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

England

Wales

Berwick-upon-Tweed

26 Section 3 of the 1693 Act went on to provide that the Crown could acquire ore from any such mine upon payment to the owners at certain rates per ton. Those rates varied depending upon whether the ore contained copper, tin, iron or lead.

27 The effect of s 3 is set out by Bainbridge supra at 45:

“The right of pre-emption, reserved to the Crown, and the persons claiming under it, is limited to copper, iron, and lead, and to tin found in any other areas than in the counties of Devon and Cornwall.

It might be contended that this right should extend equally to those metals specified in the act which contain no silver or gold at all, as to those which do actually contain them. But this construction must be considered to be excluded by the preamble and purpose of the act. Ores unmixed with any portion of gold or silver were undoubtedly the property of the subject before, and as the statute was not intended to apply to those, the right of pre-emption cannot be held to extend to any ores but those which the Crown might have pretended to claim.

This act seems to have given the most universal satisfaction to all mining adventurers, and the society for the royal mines appears to have been effectually broken up by its salutary operation.”

28 The concept of a pure gold or silver mine was virtually unknown in England at the time of these enactments. (See Sir John Pettus, Fodinae Regales, or the History, Laws and Places of the Chief Mines and Mineral Works in England, Wales and the English Pale in Ireland (1670) at 53-54. Heton supra, indicated that this was an important consideration underlying the 1688 Act when he said at 17-18:

“ … for we having yet discovered no Mine of Gold or Silver, that was pure and unmixed and needed no refining … upon this account and reason, all Metals whatsoever might be claimed by the Prerogative, and the Crown entitled to them; for there is not any such Mine either in this Kingdom or elsewhere, which hath not some Gold or Silver in it. And this occasioned that Clause in an Act of Parliament made in the fifth year of King William and Queen Mary [1693]; wherein amongst other things it is enacted, that no Mine of Copper, Tin, Iron or Lead, shall hereafter be adjudged, reputed or taken to be a Mine Royal, although Gold or Silver may be extracted out of the same.”

29 The practical operation of the right of pre-emption in the 1693 Act was limited. As Bainbridge supra noted at 46:

“Neither of the royal metals, however, are usually found in this country in union with any other metals but lead, though silver has been found in Huel Alfred, in Gwinear, Cornwall, in green carbonate of copper, and in Huel Ann, in Phillack, Cornwall, with arsenical pyrites. And it may be considered, that, on this account, no fear need be apprehended of the Crown being enabled to exercise its right.

There is a considerable quantity of silver extracted from lead ores: and the rate of pre-emption has been raised by a recent statute, by which, after reciting that in consequence of the lapse of time and change of circumstances, the former rate had been inadequate to the increased expense of raising lead, it is enacted that the rate shall thenceforth be £25 per ton.”

30 The 1688 Act remains in force in New South Wales pursuant to the Imperial Acts Application Act 1969. The 1693 Act was repealed by that Act. Nevertheless, the 1693 Act was in force at the date of the grants of the relevant land by the Crown, being between April 1852 and November 1881. Insofar as the 1693 Act operated, or contributed to, an express abrogation of the prerogative, it was the prerogative in that form that became part of the law of New South Wales

31 The Crown accepted that, subject only to its claim, ownership of minerals was conveyed to the owner of the land with each grant. All subsequent dealings with the land transferred any ownership of minerals to the purchaser. Furthermore, in this Court, the Crown accepted that the repeal of the 1693 Act was not material. It is, however, pertinent to affirm the continued effect of that Act, because it has implications for the issue of interpretation before the Court.

32 The 1693 Act never had direct operative effect in New South Wales. Both s 2 and s 3, set out at [25] and [26] above, are applicable only to mines “within the Kingdom of England, dominion of Wales [and] town of Berwick-upon-Tweed”. The application of the 1693 Act in this State is confined to the interpretation of the 1688 Act, relevantly the words “mine of copper”. In turn that informs the interpretation of the words “gold mines” in, relevantly, s 379 of the Act and the reservations implicit in each Crown grant.

33 I note that s 2 of the 1688 Act, with its obligation to make delivery at the Tower of London, may not have been received in this State, but nothing was said to turn on that.

34 The repeal of the 1693 Act had no relevant effect, in my opinion, for a number of alternative and/or cumulative reasons.

35 First, s 6 of the Imperial Acts Application Act preserves the 1688 Act ‘so far as it was in force in England on the 25^th day of July 1828’. This was the date upon which the Australian Courts Act 1828 (9 Geo. IV, c 83) (UK) received the royal assent with the effect that “laws and statutes in force” in England applied in New South Wales. As at that date, the 1688 Act was “in force in England” as modified by the 1693 Act.

36 Secondly, the issue of statutory interpretation that arises in this case focuses on the words “mine of copper” in the 1688 Act. As I have noted the 1693 Act was enacted to clarify the 1688 Act – ‘for the better explanation of the statute’. The case law which establishes that a repealed provision may be referred to in order to establish the meaning of a continuing provision has not, so far as I am aware, been applied to subsequent legislation. (See London & West Australian Exploration Co Ltd v Ricci (1906) 4 CLR 617 at 636, Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 568-9; Mathieson v Burton (1971) 124 CLR 1 at 26; R v Lavender [2005] HCA 37; (2005) 222 CLR 67 at [31].) However, in my opinion, a statute passed within a few years of the first statute, for the purpose of clarification, falls within the principle and should be accepted as part of the broader legislative context to which regard must be had when interpreting a statute.

37 Of particular significance in this respect is s 2 of the 1693 Act which affirms that the “owners … of any mine … in which there is copper … may hold and enjoy the … ore”. These are words of ownership.

38 Finally, the repeal of the 1693 Act would not have had the consequence of vesting ownership in the Crown of minerals, whether discovered or not, by reason of the application of s 30(1) of the Interpretation Act 1987, which relevantly provides:

“30(1) The … repeal of an Act … does not:

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act … , or

(c) affect any right … acquired … under the Act …”

39 The Court was not addressed on this section, but one or other of these provisions, if necessary to be relied upon, would in my opinion preserve the position as established at the time of the respective grants. It is unnecessary to consider which of these provisions would be applicable.

The Judgment of Hamilton J

40 Hamilton J focused on the purpose of the Acts of 1688 and 1693. His Honour said:

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

…

,

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

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

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

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

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

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

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

The Case of Mines

,

41 As will appear further below, I agree with his Honour’s reasoning and with his conclusion.

Submissions on Appeal

42 Mr Sexton SC, the Solicitor-General for NSW who appeared for the appellant, submitted that s 3 of the 1688 Act was intended to preclude what he characterised as “essentially a base metal mine” from being classified as a Royal mine. He submitted that it was never intended to deal with the situation in which there was a substantial amount of gold, the extraction of which was financially viable. The purpose of the Act, he submitted, was to ensure that the investment in a mine should not be deterred by the presence of small amounts of gold or silver in the ore body.

43 In written submissions he submitted that a mine that included a substantial amount of gold, as well as a substantial amount of copper, was not “a mine of copper” within s 3 of the 1688 Act. In oral submissions he added that those words were intended to refer to a mine which it was viable to mine for the copper by itself. Accordingly, where, as here, it was not viable to mine for copper alone, this was not “a mine of copper”.

44 Mr Sexton SC submitted that the purpose of the Acts of 1688 and 1693 was to facilitate mining that would not otherwise take place. He submitted that that purpose would only be served where, relevantly, it was financially viable to mine the base metal separately from the gold or silver.

45 Mr Sexton SC relied on the statement by Lord Justice Kay in Morgan at 462, that “it seems to me reasonably clear that the first Act (Wm. & M. c. 30) [1688] was only passed to encourage mining for the base metals therein particularly mentioned, and does not refer to a mine which is worked for gold, although such mine may contain a certain quantity of such base metals, or of some of them”.

46 He submitted that the position was not altered by the 1693 Act. He relied in this respect on the further observations of Lord Justice Kay at 462:

“The second statute (5 Wm. & M. c. 6) is expressed to be enacted for the better explanation of the former Act. Prima facie, therefore, it can only refer to the same mines as are mentioned in that statute. No doubt in the enacting part the language is changed to any mine ‘in which there is copper, tin, iron or lead’. … In fair grammatical construction, it appears to me that this statute only applies to mines of copper, tin, iron or lead - that is, mines which are worked for the purpose of raising one or other of those metals, and the profit of which is mainly derived from such working.”

47 Mr Bannon SC, who appeared for the respondent, relied on the observations in Morgan by each of North J, at first instance, and Lindley and Lopes LJJ on appeal, with respect to “mines of copper etc” within the meaning of the 1688 Act. Their Lordships referred to the presence of those metals in quantities “worth working”. It is sufficient to refer to the analysis of Lindley LJ.

48 His Lordship referred to the Case of Mines as establishing the principle that at common law gold and silver occurring in any mine belonged to the Crown and added at 455:

“ … if metiliferous ores contained gold or silver to such an extent as to be worth extracting, and if such ores could not be obtained without interfering with such gold or silver, the whole of such ores belonged to the Crown; and the Crown had the right to work not only gold and silver mines, but also all other mines containing gold and silver worth extracting.”

49 His Lordship also referred to the 1688 Act and stated at 456:

“This enactment did not affect the right of the Crown to gold or silver in any mine. The Act prevented the Crown from claiming any copper, tin, iron, or lead mine on the ground that it contained gold or silver; and I apprehend that the Act also abrogated the right of the Crown to any copper, tin, iron, or lead ore got from any such mine on the ground that such ore contained gold or silver. But the gold or silver, if any, remained the property of the Crown …”

50 His Lordship then referred to the 1693 Act, which he characterised as overcoming some of the difficulties involved in actually working mines of copper etc, by reason of the royal claim to the gold and silver. His Lordship referred to the preamble of the 1693 Act, which I have set out at [25] above as s 1 of the Act, referring to the ‘discouragement’ of persons “who have mines of copper etc … from digging and opening the same” by reason of the “doubts and questions” that had arisen under the 1688 Act. Lindley LJ then said at 456-457:

“The legislature assumes that there is some copper, tin, iron, or lead mind worth working by the owner, and then authorizes him to work it, though it contains gold or silver; but the statute protects the Crown by giving it an option to take the ore, with the gold or silver in it, at certain prices.”

51 His Lordship’s, and other judgments, made further references to whether the mine was “worth working”. Mr Bannon SC submitted that the Cadia Hill Mine was “worth working” for copper.

52 As both counsel accepted, dicta from Morgan can be deployed on both sides of the issue before this Court. None are determinative.

53 Mr Bannon SC submitted that the legislative purpose of the 1688 and 1693 Acts was to protect owners where the amount of copper (or other non-royal mineral) was substantial and to do so regardless of the quantities of gold and silver it contained. On this basis, he submitted, the words “mine of copper” in the 1688 Act encompass a mine which contains substantial quantities of gold and accordingly could be capable of a dual characterisation as both a “mine of copper” and a “gold mine”.

54 He submitted that the effect of the pre-emptive right at fixed prices, contained in the 1693 Act, was that the Crown had a statutory, rather than a prerogative, right to acquire the whole of the ore which contained gold or silver. However, the Crown could not exercise any pre-existing prerogative right to enter upon the land and seize the ore. It was left to its statutory rights and was required to make a pragmatic decision about whether the ore contained sufficient gold to justify paying the prescribed price.

Ownership of the Copper

55 On the above analysis the ownership of the copper turns on the interpretation of the words “mine of copper” in s 4 of the 1688 Act, particularly as ‘explained’ in the phrase “hold and enjoy the ore” in s 2 of the 1693 Act.

56 I turn first to the broader context.

57 The 1688 Act, when enacted, represented a significant readjustment of the relationship between the British Crown and its subjects. It was enacted in the year of the Glorious Revolution in which the pretensions of the Stuart dynasty were finally interred. No issue was more significant in that century, and in that year, than the sources of wealth and revenue available to the Crown without Parliamentary appropriation.

58 This was legislation of constitutional significance and must be interpreted as such. (See Jumbunna Coal Mine NL v Victoria Coal Miners’ Association (1908) 6 CLR 309 at 367-368; British Coal Corporation v The King [1935] AC 500 at 518-519; Edwards v Attorney General for Canada [1930] AC 124 at 136; J J Spigelman, Statutory Interpretation and Human Rights: The McPherson Lectures, Volume 3 (2008) Queensland University Press, especially at 53-58.)

59 The Imperial Acts Application Act reflected the constitutional significance of the 1688 Act. That Act was included, with continued effect, in Part I of the Second Schedule under the heading of “Constitutional enactments”, which list commenced with the Magna Carta, in its 1297 version, which had long been adopted as the first Act in the British statute book, and included the Habeas Corpus Acts (1640 and 1679) (UK), the Act of Settlement (1700) (UK), the Treason Act (1702) (UK) and, contemporaneous with the Royal Mines Act, the Bill of Rights Act (1688) (UK).

60 Legislation of this character cannot be approached in a narrow or technical way.

61 The parties accepted that the principal purpose of both Acts was to remove significant impediments to the development of the mining industry in England and Wales. Hamilton J relied on this purpose to give the expression “mines of copper” an interpretation to ensure that purpose.

62 As I have noted above, the appellant submitted that the purpose of encouraging the mining industry would have that effect if it facilitated mining that would not otherwise take place. That purpose, it submitted, would only be served if it were financially viable to mine the base metal separately from the gold and silver. In my opinion this is too narrow a statement of the circumstances in which the purpose could be served. The mining industry would also be encouraged in circumstances where the financial viability of a particular project depended on mining both kinds of minerals. Indeed, I doubt that confining the operation of the Act as narrowly as is contended for by the appellant would have encouraged investment at all.

63 Of particular significance in this respect are the events that occurred after the passage of the 1688 Act, in the constitutionally significant circumstances to which I have referred, and which prompted the passage of the 1693 Act. To repeat, that Act asserted itself to be an Act “to prevent disputes and controversies” and to resolve “doubts and questions” which had arisen under, and “for the better explanation of”, the 1688 Act. (See s 1.) However, for the reasons set out at [33] and [37] above, the import of the 1693 Act in Australia is directed to the interpretation of the words “mine of copper” in the 1688 Act.

64 Insofar as the historical record is available in this respect it is sparse. However, the relevant texts, subsequently referred to in judgments, identify the significance of litigation that had occurred with respect to a silver lead mine owned by Sir Carbery Price. There is no report of the decision of the case and not all of the references can be readily reconciled. Nevertheless, a general picture does emerge from reasonably contemporaneous texts. I refer particularly to Thomas Heton, Some Account of Mines and the Advantages of Them to this Kingdom (1707); William Waller, An Essay on the Value of the Mines Late of Sir Carbery Pryse (1693); and Sir Humphrey Mackworth, The Mine Adventure; Or an Expedient (1698).

65 It appears that Sir Carbery Price’s mine began operating after the 1688 Act and the litigation was resolved prior to the enactment of the 1693 Act. The mine had substantial quantities of lead. Indeed, it was described as “abounding with lead” (Heton supra at 168). Nevertheless, the mine also contained substantial quantities of silver.

66 The amount of silver was in dispute, a dispute of a familiar kind reflecting a wide range of expert opinion. The estimates for the quantity of silver varied from a rate of 4 pounds per ton of metal to 60 pounds per ton of metal. The owner contended for the smaller amount and the Royal interest for the larger. This range was identified by Mackworth as having “occasioned very great censure of perjury on one side or other” (Mackworth supra at 13). The author went on to note, however, that such variation could occur by reason of differences in the ore body.

67 The nature of the litigation was identified by Waller supra at 2:

“Sir Carbery Pryse, being seized of the inheritance of the lands where the said mines are found, and the same being the largest mines that were ever discovered in England, the Patentees of Royal Mines pretend them to be Mines Royal, and sued for the same, but the said Sir Carbery Pryce and partners being now quieted in the possession of the said mines by two verdicts at the Exchequer Bar, found for them by gentlemen of great quality both of Middlesex and Hertfordshire and also by their Majesty’s Special Order in granting them a Noli Prosequi.”

68 It is not apparent from the available record what the precise findings in the case had been. In any event, the final disposition in terms of a nolle prosequi by the Crown does suggest that the matter may not have been fully resolved by judicial decision. (See Heton supra at 28-29.)

69 Heton, supra at 29, indicated the importance of this litigation for the 1693 Act:

“ … this is certain, that Sir Carbery Price’s Concern and Title to those Mines, was the first occasion of this Act of Parliament concerning Royal Mines; which in all probability will redound to the great advantage, not only of private Proprietors and Owners of Mines, but also of the Crown and these Kingdoms, by promoting the discovery of more Mines and thereby advancing the Trade, Customs, Manufactures, Wealth and Strength of them.”

70 The author went on to set out the terms of the 1693 Act and to elaborate on the evasions that had preceded it and the expansion of mining that would now ensue.

71 The appellant submitted that the very existence of a dispute about the quantity of silver in the ore – from 4 pounds per ton to 60 pounds per ton – indicated that the parties in dispute in the case of Sir Carbery Price adopted the interpretation of the 1688 Act for which it now contends. That disputation, it submitted, suggests that whether or not a mine could properly be characterised as one of copper, or in that case of lead, was contingent upon the amount of the royal mineral that was being extracted from it.

72 The appellant submitted that the approach of Justice Hamilton, and of the respondents, would have required Sir Carbery Price’s mine to be characterised as a mine of lead because, as noted above, it was described as having “abounded” with that metal. On that approach, this would be the characterisation regardless of the amount of silver present in the mine. The appellant submits that such a result is inconsistent with the records showing that the quantity and significance of the silver in the ore was the subject of lengthy disputation in the case of Sir Carbery Price.

73 This disputation does not, in my opinion, assist the appellant.

74 First, even the small quantity of royal metal, ie, 4 pounds per ton, for which the owner of the mine contended, was greater than the proportions for which the appellant appears to contend. Indeed, in terms of proportionate quantities, the ratio of gold to copper at the Cadia Mine is not qualitatively different to that of silver to lead in Sir Carbery Price’s mine. Furthermore, contemporary sources emphasise that the amount of silver, in total, was regarded as significant. As Heton supra, put it, at 27, the patentees of the Royal Mines made their claim because of the discovery of “a considerable quantity of silver being found mixed with the lead”.

75 Indeed, the mine was of sufficient renown to inspire Thomas Yalden to compose a lengthy patriotic poem entitled To Sir Humphry Mackworth, On the Mines, Late of Carbery Price (in Samuel Johnson (ed), The Works of the English Poets with prefaces, biographical and critical, Volume 39 (1798), Goldney, London at 52) in which the significance of the silver was emphasised:

“The silver, shedding beams of orient light”

“The liquid silver flow’d in restless streams”.

76 Finally, as I have indicated above at [17], it had become the accepted view that the Case of Mines principle applied to vest the whole of the ore in the Crown only if the value of royal metal was greater than the cost of separating it. Accordingly, the amount of silver in the lead was directly relevant to the dispute about the Carbery Price mine.

77 Heton set out the legal opinion mentioned in the extract at [17] above. It was prepared for Charles I in 1640, a period when the claims for prerogative were at least as extensive as those made at the time of Elizabeth I. Heton supra, added at 27:

Mine-Royal,

Ore,

Assayers

Carbery Price

Eft-kyr-kyr

Cardiganshire,

Silver

Lead,

King,

Patentees

Royal Mines,

Bar

Westminster-Hall;

Silver

Lead,

78 The appellant’s contention that neither the 1688 Act nor the 1693 Act apply to a mine containing significant amounts of a royal mineral find no support in the dispute in the Carbery Price proceedings. In any event, the uncertainty that existed as a result of this litigation was intended to be resolved by the 1693 Act.

79 The ability of the Crown to acquire gold and silver as of right is an important part of the context in which the relevant words – “mine of copper” and “hold and enjoy the ore” – must be interpreted.

80 The fact that gold and silver determined the quantity of currency in circulation was then of central significance to the operation of the economy. Blackstone states that the prerogative to royal metals had its origin in the prerogative of coinage. (Blackstone, Commentaries on the Laws of England, 1^st ed (1765-1769), Clarendon Press, Book 1, Ch 8, XII at 284). Any right to acquire the physical metal has long since been replaced by rights to royalty payments, either as an incident of ownership, pursuant to statute or as a form of taxation. As indicated at [34] above, it may well be that this right did not exist in Australia, but that does not detract from its significance for purposes of interpretation of the words “mine of copper”.

81 Section 3 of the 1688 Act empowered the Crown to acquire all gold and silver extracted from mines in England so that those metals could be “employed for no other use or uses whatsoever but for the increase of moneys”. However, s 3 also required the Crown to pay “the full and true value” of the gold and silver. This more than anything else manifests the constitutional significance of the 1688 Act. Unlike the previous law, notably as determined in the Case of Mines, the Crown’s prerogative no longer enabled expropriation without compensation. It is unlikely that expropriation of the base metals without compensation was intended if the royal mineral was present in significant amounts. However, that is the proposition for which the appellant must contend.

82 Difficulties arose with respect to the administration of the 1688 Act. Within a few years it was clarified by the 1693 Act, which stated that it was enacted “for the better explanation” of the 1688 Act. The 1693 Act enacted a scheme in substitution for the option to purchase gold and silver. It granted the Crown a right of pre-emption at fixed prices, varying with the base metal, for the whole of the ore. Again, the constitutional nature of the change is manifest by the fact that the Act ensured that the Crown would pay for the ore.

83 It is, of course, very difficult now to assess the true market price of ores containing copper, lead, tin or iron in 1693. However, it seems clear that the rates were fixed in such a manner as to ensure that the Crown would only exercise its option to purchase if the ore contained a significant proportion of gold.

84 Heton referred to the impact of the 1693 Act in terms which confirmed this proposition. I have set out the full quotation at [20] above but repeat the following sentence (at 33-34):

Her Majesties

Act

85 This proposition is also supported by the observations of Lord Justice Lopes in Morgan supra, at 459:

“It is said that the rates fixed by s 3 of the second Act are prohibitive. To a certain extent I think they are so intended, the object being that the Crown should not be induced to take the ore unless it contained sufficient gold or silver to make it worth while to pay those rates. This was for the benefit of the subject, and secured to him the produce of his mine in all cases where there was not a substantial quantity of precious metal.”

86 To the same effect were the observations of Lord Justice Kay in Morgan supra, at 462-463:

“… the Crown has put such a price upon the ore as makes it certain that a man may safely mine for copper, tin, iron and lead without danger of interference, unless it contains a very large proportion of gold.”

87 Similarly, Lindley LJ proceeded on the assumption that the statutory prices to be paid by the Crown specified in the 1693 Act were higher than the price of the base metals alone during that era. His Lordship said at 457:

“Assuming this to be so, the only effect would be to deter the Crown from interfering with the working of copper mines etc unless the gold or silver in them were present in such quantities as to make it worth the while of the Crown to pay the statutory prices for the mixed ore. This would still be to protect a person desirous of working the mines for the sake of the base metals contained in them.”

88 It appears to be the case that the pre-emptive right to buy at a fixed price would only be exercised if the amount of royal metal was significant. That is inconsistent with the appellant’s contention that the Case of Mines ruling – that the Crown owned the base metal without compensation – continued to apply if the amount of the royal mineral was significant. This assists in the interpretation of the words “mines of copper” even though the pre-emptive right did not extend to mines beyond England, Wales and Berwick-upon-Tweed.

89 The provision of a right to purchase the gold and silver at fair value (in the 1688 Act), or purchase ore at a fixed value (in the 1693 Act), both indicate the basic purpose of the legislative scheme to ensure the development of the mining industry, in the context of redressing a constitutional imbalance between King and subject. I agree with Hamilton J, that this objective would not be well served if the Crown was able to acquire the ownership of the base metal by the exercise of the prerogative, save in circumstances where that base metal was present in such small amounts as not to be worth separately extracting.

90 The intended scope of the expression “mine of copper” was, in my opinion, clarified by s 2 of the 1693 Act which expressly used language of ownership to state that the owner of any mine “in which there is copper, tin, iron or lead … may hold and enjoy the same mine or mines and ore”. This informs the intention with which the expression “mine of copper” was used in the 1688 Act.

91 In my opinion, a mine containing a substantial amount of copper answers the statutory description. It does so even if the quantity of gold is such that the mine is capable of a dual characterisation as a gold mine. I agree with Hamilton J that the words “gold mine” and “copper mine” are not mutually exclusive.

92 By force of s 4 of the 1688 Act, as clarified by s 2 of the 1693 Act, the Crown’s prerogative ownership of, relevantly, copper was abolished, but the Crown’s prerogative ownership of, relevantly, gold was not affected. Thus, at the date of the grants of the lands in issue in the present case, the ownership of the copper passed, so that the copper is a “privately owned mineral” within the meaning of the Act. However, by force of the principle of interpretation referred to at [6]-[7] above, or, alternatively, by the application of s 379 of the Act, the ownership of the gold did not pass and it remains a “publicly owned mineral” within the meaning of the Act.

Conclusion

93 The appeal should be dismissed with costs.

This case has given rise to divergent legal opinions as to whether ore containing an admixture of gold and copper is owned by the State of New South Wales as a benefit flowing from the Crown prerogative or by the owner of the land pursuant to grants of an estate in fee simple at various dates between 1852 and 1881. In my view the contentions of the State should be accepted and the appeal allowed.

Background

95 The proceedings in the Court below were commenced by the present respondents seeking a declaration that “copper contained in or beneath the Specified Land … is a privately owned mineral for the purposes of [the Mining Act 1992 (NSW)]”. If correct in that claim, it was entitled to a judgment for payment of seven-eighths of the royalties paid to the Minister, as the owner of the copper: Mining Act, s 284. The phrase “privately owned mineral” is defined to mean a mineral “that is not owned by, or reserved to, the Crown”: Mining Act, Dictionary. The phrase “publicly owned mineral” is defined to mean “a mineral that is owned by, or reserved to, the Crown”.

96 Prior to the various grants, the land identified in the pleadings as “the Specified Land” was held by the Crown, probably subject to native title. The native title rights and interests would have been extinguished by any grant of an estate in fee simple. Prior to the grants, it is not in issue that minerals in the land were owned by the Crown.

97 The effect of any grant of land must necessarily depend upon the terms of the statute under which the grant was made, and the terms of the grant. The earlier grants the subject of the present proceedings were presumably made under the Crown Land Sales Act of 1842: 5 and 6 Vic c 36, s 2. Pursuant to Regulations for Sale of Crown Lands, dated 1 March 1843, deeds were required to have certain reservations not presently relevant, and “precious minerals or metals may be also reserved, if it be known that they greatly abound in any district, but not otherwise”: cl 21. The later grants were made under the Crown Lands Alienation Act of 1861, following the transfer to the New South Wales Legislature of “the entire management and control of the Waste Lands belonging to the Crown in the said Colony, and also the application of the gross proceeds of the sales of any such lands and of all other proceeds and revenues of the same from whatever source arising from within the said Colony including all royalties, mines and minerals”: Constitution Act of 1855, s 2.

98 It followed that, generally speaking, from 1850 until 1861, grants in New South Wales contained no reservation of minerals: see Minister for Mineral Resources v Brantag Pty Ltd [1997] NSWCA 207, URJ p 7(30); 8 BPR 15,815 (Mason P). It is not, however, necessary to consider either the legislation or the grants in the present case as “the Specified Land” referred to in the pleading was restricted to land subject to the grants which contained no reservation of minerals. (It may be noted that in New South Wales there has been no legislative equivalent of the Minerals (Acquisition) Ordinance 1953 (NT), s 3 of which vested in the Commonwealth all minerals existing in their natural condition not being the property of the Crown or the Commonwealth: see Kean v The Commonwealth (1963) 5 FLR 432 (Bridge J); Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 292 (Blackburn J).)

Title to royal mines at common law

99 The grants did not pass property in the royal metals, gold and silver: see Case of Mines; The Queen v Earl of Northumberland (1568) 1 Plowden 310; 75 ER 472 at 511; Woolley v Attorney-General (Vic) (1877) 2 App Cas 163. As explained by Windeyer J in Wade v New South Wales Rutile Mining Pty Ltd [1969] HCA 28; 121 CLR 177 at 186, “[n]o express reservation was necessary to preserve the Crown’s rights [in gold].” (A different result could be achieved by the constitutional transfer of “property” of the State to the Commonwealth, pursuant to ss 51(xxxi) and 85 of the Constitution: see The Commonwealth v New South Wales [1923] HCA 34; 33 CLR 1 at 37-38 (Isaacs J).) Nor was it in dispute in the present case that the gold in the specified land was a publicly owned mineral. The question is whether the State ownership of the gold, in mineral form, extended to copper, also in mineral form, which was not recoverable from the land separately from the gold.

100 The parties treated the answer to this question as depending upon the effect of British law as received in the colony of New South Wales and in force on 25 July 1828: Australian Courts Act 1828 (Imp), s 24. A suggestion that the relevant common law had, in this respect, been affected by the Crown Land Sales Act 1842, conferring on colonial governors the power to dispose of waste lands of the Crown, was rejected in Woolley, at 167. No other legislation between reception of the common law and the date of the grants in the present case was said to have affected the common law principles. Nor was it contended that the common law, as reflected in the Case of Mines had otherwise altered to accommodate social or technological changes which had taken place by the time of the land grants: cf Brodie v Singleton [2001] HCA 29; 206 CLR 512 at [108].

101 The Case of Mines affirmed not merely that any gold or silver in the land of a subject was owned by the Crown, but also any “base metal” which was found in the mine, even if the value of the base metal exceeded the value of the gold or silver: 75 ER at 511: set out by Handley AJA at [133] below.

102 The Case of Mines created a difficulty in holding that the owner of the land would be entitled to a mine of copper, but only one “in which there is no gold or silver”. The reporter, Plowden, noted that even in Roman times Agricola had identified that gold and silver “is naturally in copper” and that “silver is naturally in iron and lead”, so that “there is naturally in these base metals some portion of gold or silver”: 75 ER at 515. Indeed, Heton’s Account of Mines (1707) went somewhat further, at p 17:

Crown

yet

Gold

Silver

pure

unmixed

no refining

Gold

Silver

naturally

103 If that were so, any copper or lead mine would, on the authority of the case, be owned by the Crown, so long as the means of extracting the gold or silver were available. It appears that technological developments in the means of extracting and refining gold and silver, at least in part, gave rise to the statutes of 1688 and 1693. No doubt the means of extraction improved greatly since the 16^th century, but as late as 1900, Darley CJ noted in Attorney-General v Great Cobar Copper Mining Co [1900] 21 LR (NSW) 351 at 357:

“This was a copper mine, and possibly when the defendants selected this land they did not know that the copper contained gold, and possibly there were not the means of extracting the gold from the copper in this colony. It now turns out, however, that there was a large quantity of gold in the copper, and when the copper was sent to England the quantity of gold extracted from the copper for two years was 18,765 oz, and the question is, to whom does it belong?”

104 The answer to that question is not of direct assistance, because it turned upon the terms of the grant and the case was not concerned with ownership of the copper. However, the factual circumstance exemplified the uncertainty as to the extent of the Crown prerogative, as explained in the Case of Mines and as disclosed in the recitals to the 1688 Act.

The 17

^th

century statutes

105 The purpose of the 1688 Act, as reflected in s 1 (the recital section), was to address circumstances where technological developments in melting and refining metals had allowed for the extraction of gold and silver where, implicitly, that had not previously been possible. The avowed purpose of the 1688 Act was to repeal a prohibition in an earlier statute against “the multiplying gold and silver”. Since well before 1688, the term “multiply” had meant no more than to increase in quantity or to augment by accumulation or repetition: see Oxford English Dictionary (online). Absent statutory amendment, conduct amounting to the felony of multiplying gold or silver, with all that followed from a conviction for a felony, would have provided a powerful disincentive to opening a mine which was rich in other valuable minerals.

106 After repealing 5 Hen 4 c 4, the 1688 Act enacted that “… all the gold and silver that shall be extracted by the aforesaid art of melting and refining of metals … be from henceforth employed for no other use or uses whatsoever, but for the increase of moneys …”: s 3. The subject matter of this section was not mines or ores, but any gold or silver extracted therefrom. The second limb of s 3 provided for the sole place of “disposal thereof”, namely their Majesties’ Mint within the Tower of London.

107 The third limb, to which it will be necessary to return, provided that “they”, apparently being persons responsible for extracting the metals from the ore, “are to receive the full and true value for their gold and silver so extracted”. The final limb of s 3 reiterated that no other use or disposition of gold or silver, so refined and extracted, was permitted.

108 Section 4 was not concerned with the extracted metal, but rather mines of copper, tin, iron or lead which, it was declared, should not be “adjudged, reputed or taken to be a Royal mine, although gold or silver may be extracted out of the same”. The need for this provision arose, at least in part, from the temporal ambiguity of the term “mine”. In broad terms, a mine may be an ore body or the working thereof. Metal, once extracted and refined, is no longer part of a mine. The concern which appears to be reflected in s 4 is that a body of ore may be worked over time with the result that, although not originally known to contain gold or silver, it may be found to hold gold or silver after an initial quantity has been extracted and refined.

109 So far as the third limb of s 3 was concerned, the requirement that the Crown pay for gold and silver which had been extracted and refined, was arguably inconsistent with any pre-existing right of ownership of those metals. If it were not the intention of the Act to override the royal prerogative with respect to royal mines, the Act must have been intended to apply to lesser quantities of gold and silver admixed with one of the four ores. The question left open was how much gold or silver might be found in a “mine of copper” without it being a royal mine.

110 Whatever the precise scope of the 1688 Act, it was clearly not intended to repeal the royal prerogative with respect to royal mines, nor does it address the question expressly answered in the Case of Mines, namely the right of the Crown to other metals taken from a mine of gold or silver. Indeed, if the 1688 Act were thought to have operation in the present circumstances, presumably the State would have been required to pay for the gold extracted from the mine. That was not proposed by the respondents.

111 The 1693 Act (although no longer in force in this State) may be considered to the extent that it clarifies the operation of the 1688 Act. It was entitled, “an Act to prevent Disputes and Controversies concerning Royal Mines”. It recited the terms of s 4 of the 1688 Act, describing it as “the good provision [made] by the said Statute to prevent the discouraging of Their Majesties’ good Subjects, who have Mines of Copper, Tin, Iron or Lead in their Soils, from digging and opening the same”: s 1. The new statute was said to be “for the better explanation of” the earlier statute.

112 Section 2 was directed to persons that “are or shall hereafter be the Owner or Owners, Proprietor or Proprietors, of any Mine or Mines … wherein any Ore now is, or hereafter shall be discovered … and in which there is Copper, Tin, Iron or Lead”. The owners of such mines were to enjoy the same, continue in possession thereof and be entitled to dig and work the said mines “notwithstanding that such Mine or Mines or Ore shall be pretended or claimed to be a Royal Mine …”. This section was an extrapolation of s 4 of the 1688 Act, providing a more complete protection from any interference by the Crown in relation to such mines. It was based on an assumption of private ownership of the mines in question.

113 There was no repetition of the requirement that gold and metal extracted from such mines had to be sold to the Crown for full and true value: rather, the Crown was given a right of pre-emption with respect to the ore, before any extraction or refinement took place, but after the ore had been removed from the ground, washed and made clean and merchantable. A schedule of prices was enacted, being ₤16 per ton for copper, ₤2 per ton for tin and iron and ₤9 per ton for lead. In default of an exercise of the Crown’s right of pre-emption, the owners and proprietors of the mines were entitled to sell and dispose of the ore for their own uses.

114 It appears to have been assumed in various cases that the schedule of prices was, at least when enacted, above the merchantable value of such ore. It is surprising that a single price could be fixed for a ton of, say, ore containing lead, wherever found: cf Bainbridge W, A Practical Treatise on the Law of Mines and Minerals (1841) pp 46-47. But in any event the relationship between the generally payable market prices and those in the schedule is obscure. In 1815, the price payable for lead ore was raised to ₤25 per ton, but the prices payable for other ores were not changed: 55 Geo 3 c 134, referred to by North J in Attorney-General v Morgan [1891] 1 Ch 432 at 446. (The absence of variation in the other prices may have been due to the fact that “[n]either of the royal metals … are usually found [in the UK] in union with any other metals but lead”, from which silver was commonly extracted: Bainbridge, p 46.)

115 Perhaps curiously, gold and silver were referred to only in the recital to the 1693 Act, describing the effect of s 4 of the 1688 Act. Nevertheless, the operative provisions of the 1693 Act, being by way of clarification, must be understood to have applied to mines of copper, tin, iron or lead from which ore containing gold and silver had been obtained and the gold or silver extracted.

116 If any more historical detail is available than that which emerges from the discussion in the judgment of the Chief Justice, it was not before this Court. Accordingly, a contextual understanding of the circumstances giving rise to the 1688 and 1693 Acts is largely missing. Such assumptions as may be made are fraught with uncertainty: cf Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 at 184 (Gummow J). For example, even if sense could be made of a standard rate for a ton of copper ore, no obvious inference can be drawn with respect to the quantity of gold or silver which would be necessary to make its purchase by the Crown profitable.

117 In truth, the 1688 and 1693 Acts are only indirectly relevant: what is sought to be inferred from statutes which did not deal with royal mines explicitly, was a limit on the concept of a royal mine. Whether the parameters of the concept, or its application to particular ores, will have changed over the centuries was not addressed. Perhaps following Plowden’s note to the Case of Mines, the parties put in evidence detailed reports as to the operations, costs, quantities of ore recovered, value of metals extracted and royalties paid, broken down according to the specified land and other land. However, this Court was not taken through that evidence, the parties implicitly accepting that such information could not assist in determining whether the ore body constituted a royal mine at the date of grant, on the basis of concepts derived from 17^th century English statutes and the earlier common law. Nevertheless, reference was made to the relative quantities of copper and gold extracted, to their value and to the financial viability or otherwise of a mining operation seeking one or the other, but not both. However, even assuming a degree of price stability unknown in modern times, it is not clear that, under the general law, an auriferous lode ceased to be a royal mine when its extraction was not likely to be profitable, or became a royal mine if the value surpassed the cost of recovery.

118 In the statement of the law to be found in a passage from Bainbridge, set out by the Chief Justice at [17] above, the author stated (in 1843) that “the opinion of the nine judges [in the Case of Mines] does not appear to have gained the acquiescence of more recent lawyers”. After referring to the opinion of 15 leading counsel provided in 1640, which he stated “seems to have been generally adopted” (at p 43), Bainbridge continued:

“But considerable difference of opinion still prevailed in many instances with respect to the actual fact of the royal metals bearing the charges of refinement.”

119 What weight this Court is required to accord to the opinions of counsel, and differences of opinion, as compared with the judgment in the Case of Mines, was not explored in argument. However, both the author and the opinion to which he referred expressly treated the critical issue as the cost of refinement, it being the new technological skills which appear to have caused disquiet about the effect of the Case of Mines some 70 years later. This may be identified in the opinion itself (admirably succinct by modern standards) published in Heton’s Account of Mines (1707) at p 26:

“Altho’ the Gold or Silver contained in the base Metal of a Mine in the Lands of a Subject, be of less value than the base Metal; yet if the Gold or Silver do countervail the charge of refining it, or be of more worth than the base Metal spent in refining it: This is a Mine-Royal, and as well the base metal, as the Gold and Silver in it, belong to the Prerogative of the Crown.”

Conclusions

120 All that can be said with a reasonable degree of certainty is that the statutes relied upon by the respondent arose from changes in metallurgical practices which allowed the extraction of gold or silver from ores from which previously they might not have been obtained. The royal mine, which the Crown was entitled to open by entering as of right on private land and the recovery of which the Crown could prevent if the owner attempted it, was, as the Case of Mines held, an indivisible ore body to the whole of which the Crown was entitled. Nothing in the statutes changed that principle.

121 There was no suggestion in the present case that the body of ore did not include a royal mine or, in statutory terminology, a publicly owned mineral. Under the Mining Act, questions of pre-emption no longer apply and no person may undertake mining activities without an appropriate mining tenement. Nevertheless, the principles for determining the ownership of the ore body remain the same. The case may be determined on the basis of three factual premises: namely, (a) the ore contains gold which is conceded to be a publicly owned mineral; (b) other minerals within the ore, and in particular copper, cannot be recovered from the mine separately from the auriferous ore, and (c) it is conceded that the Crown’s ownership of the gold was not affected by the 1688 or 1693 statutes.

122 If it be necessary, I would also invoke the principle, properly applicable to statutes passed in the 17^th century, that the prerogative is not to be displaced or restricted by statute in the absence of clear words, as explained by Handley AJA. This is not a case in which the competition is between the prerogative arising under the common law and a power or right arising under statute. In such a case, it may often, perhaps usually, result in the conclusion that “where a matter within the prerogative is provided for by statute, the prerogative is merged in the statute”: In re De Keyser’s Royal Hotel Ltd; De Keyser’s Royal Hotel Ltd v The King (1919) 2 Ch 197 at 216-217, quoted by Isaacs J in The Commonwealth v New South Wales, 33 CLR at 39; Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508; Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 at [33]-[41] (Black CJ, dissenting) and [181]-[185] (French J, Beaumont J agreeing). Rather, this was a case involving competition between public rights vested in the Crown (and now the State) and the rights of private individuals as landowners. That approach to statutory construction is consistent with the principle that grants by the Crown are construed against the grantee and not in his or her favour, in circumstances in which the prerogatives and rights of the Crown are diminished by the grant: see Brantag, URJ p 8 and authorities there referred to, including The Rebeckah (1700) 1 C Rob 226; 165 ER 158 at 159.

123 None of that is to deny the constitutional significance of the statutes. The prerogative of the Crown did not merely confer on the Crown ownership of royal mines, but with it the right to enter upon lands held in freehold by subjects of the Crown, to search and recover gold and silver, with the potential to cause significant disruption and destruction of otherwise valuable property. Thus, in describing the change made by the 1693 Act, Heton noted at p 34:

England

Patentees

Society for Royal Mines

Royal

Grants

Crown of Royal

Grantees

Patentees

124 To similar effect, reference was made in argument in the Case of Mines to provision in the statute of Magna Carta by which the King conceded that he would not take “any man’s wood for our castles, or other our necessaries to be done, but by the license of him whose the wood is”: 75 ER at 490. Thus it is clear that a major concern to which the statutes were addressed was the protection of the proprietor of lands from the arbitrary intrusion of the Crown, or its licensees, if gold or silver were to be found by the act of refining recovered ore.

125 For these reasons, and the further reasons given by Handley AJA with which I agree, the following orders should be made:

(1) Allow the appeal and set aside the orders and declarations made in the Equity Division on 16 June 2008.

(2) Declare that the copper in the specified land is a publicly owned mineral for the purposes of the Mining Act 1992 (NSW).

(3) Order that the respondents repay to the Minister all moneys paid to them in execution of the judgment in the Court below together with interest from the date of such payment until the moneys are repaid, calculated at the rate prescribed in the Fifth Schedule to the Uniform Civil Procedure Rules 2005.

126 HANDLEY AJA: This appeal by the State from the judgment of Hamilton J raises for decision the ownership of the copper mixed with the gold in the ore bodies of the Cadia Valley Mines near Orange in land owned by the respondent companies. The dispute relates to the ore from the Cadia Mine, and to part of the ore from the Cadia Extended Mine. It is common ground that none of the relevant Crown grants contained a reservation of copper to the Crown. It is also common ground that the Crown owns the gold in the land the subject of those grants.

127 Hamilton J found that from the time mining operations began in 1998 until December 2007 the value of the gold extracted from the Cadia Mine and the relevant sections of the Cadia Extended Mine exceeded the value of the copper extracted from the same ore, the relevant figures being $1.39 billion in respect of the gold and $907 million in respect of the copper. He also found that the gold and copper are intermingled in the ore so that neither can be mined separately and the mines could not be conducted economically to recover either the gold alone or the copper alone.

128 The Crown claims that although the copper was not reserved to it in the relevant Crown grants it nevertheless owns the copper pursuant to the prerogative right to gold mines or Royal mines.

129 Mining operations are being conducted by the respondents under leases granted pursuant to the Mining Act 1992 which binds the Crown (s 3). Section 11(1) provides:

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

130 Section 282(1) makes the holder of a mining lease liable to pay royalty to the Minister on publicly owned minerals, in this case the gold, recovered under the lease. Section 284(1) imposes a similar obligation on the mining leaseholder in respect of privately owned minerals, but s 284(2) obliges the Minister to account for 7/8ths of those amounts to the private owner. Section 379 provides:

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

131 The dictionary in the Act provides that privately owned mineral means a mineral that is not owned by or reserved to the Crown. The gold in the ore from these mines in situ was a publicly owned mineral. The companies claim that the copper was a privately owned mineral because it was not reserved in the Crown grants whereas the State claims that because the mines are gold mines it owns the intermixed copper as well as the gold.

132 The resolution of this dispute requires the Court to embark on a journey into legal history which must start from The Case of Mines: Attorney General v Earl of Northumberland (1568) 1 Plowden 310 [75 ER 72] which reviewed the Crown’s prerogative over mines of gold and silver. The case was heard by all the judges and barons of the Courts of Common Law who ruled unanimously (75 ER at 510):

“that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belonged to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with such other incidents thereto as are necessary to be used for the getting of the ore”.

133 The majority, with the dissent of three, agreed [75 ER at 511]:

“… that if the gold or silver in the base metal in the land of the subject be of less value than the base metal is, (sic) as well the base metal as the gold or silver in it belonged by prerogative to the Crown, with liberty to dig for it, and to put it upon the land of the subject, and to carry it away from thence; and in such case it shall be called a mine royal, for the records don’t make any distinction herein, that they are general, and prove that all ores or mines of copper, or other base metal, containing or bearing gold or silver belonged to the King … for the precedents and the accounts prove that from time to time it has been a custom and usage, that the Kings of this realm have had the profit of such mines of base metal containing or bearing gold or silver, without any distinction with regard to the value of the gold or silver, be the same greater or less than the base metal. Wherefore … the whole ore and mine belonged to the Queen, although the base metal be of the greater value … Also they all agreed, that if the ore or mine in the soil of the subject be of copper … in which there is no gold or silver, in this case the proprietor of the soil shall have the ore or mine, and not the Crown by prerogative, for in such barren base metal no prerogative is given to the Crown.”

134 The width of the prerogative thus established or confirmed discouraged mineral exploration and development on privately owned land and after the Glorious Revolution Parliament passed the Royal Mines Acts 1688 and 1693. The former, but not the latter, was continued in force by the Second Schedule of the Imperial Acts Application Act 1969. Section 4 of the 1688 Act provided:

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

135 The recital of the 1693 Act referred to s 4 of the 1688 Act and continued:

“But notwithstanding the good provision by the said Statute to prevent the discouraging their Majesties’ good Subjects who have mines of Copper … in their Soils, from digging and opening the same, many Doubts and Questions have arisen upon the said Statute, whereby great Suits and Troubles have arisen to many Owners and Proprietors of such Mines; wherefore, for the better Explanation of the said Statute”

136 Section 2 of that Act then provided:

“Be it enacted and declared … that all and every Person or Persons, being subjects of the Crown of England … that now are or hereinafter shall be the Owner or Owners, Proprietor or Proprietors, of any Mine or Mines within the Kingdom … wherein any Ore now is, or hereafter shall be discovered, opened, found, or wrought, and in which there is Copper … shall and may hold and enjoy the same Mine or Mines and Ore, and continue in the Possession thereof, and dig and work the said Mine or Mines or Ore, notwithstanding that such Mine or Mines or Ore shall be pretended or claimed to be a Royal mine or Royal mines; any Law, Usage, or Custom to the contrary notwithstanding.”

137 Section 3 gave the Crown a right of pre-emption at fixed prices over ores containing mixtures of one of the listed base metals and one or more of the Royal metals. Section 2, read in isolation, could be construed as applying to any mine “in which there is copper … ” regardless of the presence of substantial gold and silver, but it has been given a narrower construction.

138 The word “mine” in s 4 of the 1688 Act (“no mine of copper”, and “Royal mine”) and in the recital and s 2 of the 1693 Act (“Mines of Copper”, “any Mine … within the Kingdom”, and “Royal Mines”) and in s 379 of the Act (“gold mines and silver mines”) is not limited to working mines, and it was common ground that it included undiscovered and unworked ore bodies in the land. Lord Macnaghten said in Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657, 687:

“Now the meaning of the word ‘mines’ is not, I think, open to doubt. In its primary signification it means underground excavations or underground workings. From that it has come to mean things found in mines or to be got by mining, with the chamber in which they are contained. When used of unopened mines in connection with a particular mineral it means little more than veins or seams or strata of that mineral.”

139 The 1693 Act in its application in this State remains relevant despite its repeal by the 1969 Act because it was in force at the time of the relevant Crown grants, although there were no actual mine workings until 1998.

140 The meaning of the 1693 Act was considered in Attorney General v Morgan [1891] 1 Ch 432. The defendant was extracting gold and silver bearing ore from a mine in Wales which contained traces of copper of no commercial value. The Crown claimed the gold and the silver under the prerogative and the defendant relied on the Acts of 1688 and 1693. North J held at 446 that s 4 of the 1688 Act did not protect the defendant “for no one contends that the … mine can be described fairly as a mine of copper.” The defendant relied principally on s 2 of the 1693 Act and its reference to “any Mine wherein any Ore is found in which there is Copper …”. North J rejected this argument at 447- 8, 450:

William

Mary

141 The case went to Court of Appeal where Lindley LJ said at 455:

Case of Mines

142 Kay LJ said at 462-3:

“The second statute [of 1693] is expressed to be enacted for the better explanation of the former Act. Prima facie therefore it can only refer to the same mines as are mentioned in that statute. No doubt in the enacting part the language is changed to any mines ‘in which there is copper …’ … In fair grammatical construction, it appears to me that this statute only applies to mines of copper … - that is mines which are worked for the purpose of raising one or other of those metals, and the profit of which is mainly derived from such working. … The Acts are dealing, not with gold mines, but with mines of copper … What is such a mine is not determined by them, and there may, doubtless, be imagined a case where the gold was such that the value of the gold and copper per ton of ore was nearly the same, and where it would not pay to work the mines for one of these metals without the other, and it might be difficult in such a case to say whether the mine should be called a copper mine or a gold mine. Probably any Court before which the question came would be inclined to give the mine-owner the benefit of such a doubt.”

143 The prerogative, as interpreted in The Case of Mines, has been treated as part of the common law introduced into the former settled colonies on settlement: Woolley v Attorney General of Victoria (1877) 2 App Cas 163, 166; Attorney General of British Columbia v Attorney General of Canada (1889) 14 App Cas 295, 302. Thus the prerogative right of the Crown to gold mines and silver mines formed part of the law of New South Wales in 1992 when it was preserved by s 379 of the Act. The Solicitor-General declined to argue that the 1693 Act had never been part of the law of the State, although the right of pre-emption at fixed prices conferred on the Crown by that statute was incapable of application in a settled colony. Cf Attorney General v Great Cobar Copper Mining Co. (1900) 21 NSWLR 351, 354, 356.

144 At common law, in accordance with The Case of Mines, the Crown would have owned the copper in these mines. For this purpose a gold-copper mine was a gold mine or a Royal mine. The statutes of 1688 and 1693 withdrew copper mines from the prerogative although the ore contained appreciable quantities of gold and silver which were of commercial value, provided the mines could fairly be described as copper mines. Attorney General v Morgan [1891] 1 Ch 432 decided that after the 1688 and 1693 Acts those mines which could fairly be described as gold mines remained within the prerogative although the ore contained small non commercial quantities of copper.

145 The evidence and Hamilton J’s findings established that the Cadia Mines are not fairly described either as gold mines, or as copper mines. They can only be described as gold-copper mines, just as the mines in Broken Hill were described as silver-lead-zinc mines. The question for this Court is whether gold-copper mines are “copper mines” within the 1688 and 1693 statutes or whether they remained within the prerogative.

146 In my judgment to describe these mines as copper mines would be to underdescribe them to the point of misdescription as Kitto J said, in a very different context, in Ready Mixed Concrete (Victoria) Pty Ltd v FCT (1969) 118 CLR 177, 184.

147 The value of the gold extracted from the ore mined over the relevant period exceeded the value of the copper by a substantial margin. but I do not consider that fluctuations in ore grades and market values could change what is a gold-copper mine one month into a gold mine the next and into a copper mine the month after that. The characterisation of a mine should not fluctuate back and forth in this way. These were not copper mines during the relevant period, and their only proper description or characterisation was gold-copper mines.

148 This was not just because the value of the gold exceeded the value of the copper. They would not cease to be gold-copper mines if the value of the copper exceeded the value of the gold so long as the value of the gold content was sufficiently substantial. The Court is not concerned with the difficult questions of fact and degree which could arise in borderline cases. This is not a borderline case.

149 The 1688 and 1693 Acts do not require in terms that mines such as this should be characterised either as gold mines, and thus within the prerogative, or as copper mines and thus within the statutes. I see nothing in the Acts which excludes a mixed characterisation in a case such as this.

150 In my judgment the problem is to be resolved by applying the principle that the prerogative is not to be displaced or restricted by statute in the absence of clear words. In Barton v The Commonwealth (1974) 131 CLR 477, 488, Barwick CJ said:

“… the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong.”

151 Mason J said at 501:

“It is well accepted that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or by… necessary implication.”

152 Jacobs J said at 508:

“… an intention to withdraw or curtail a prerogative power must be clearly shown.”

153 The Privy Council referred to this principle in Woolley v Attorney General of Victoria (1877) 2 App Cas 163, 167-8:

“… it is a recognised principle of the construction of statutes that the prerogative rights of the Crown can be affected only by express words or necessary implication.”

154 The withdrawal of copper mines from the scope of the prerogative by the combined effect of the 1688 and 1693 Acts was achieved by clear words. Before those Acts the prerogative, as established by The Case of Mines undoubtedly applied to a mine that could fairly be described as a gold-copper mine. I can see nothing in those Acts, either in express words or by necessary implication, which withdrew mines of this character from the scope of the prerogative.

155 Gold mines within the Case of Mines were a continuum ranging from a pure gold mine to one in which the gold was mixed with other minerals and was a mere by product of the profitable extraction of the latter. The 1688 and 1693 Acts relevantly withdrew from the range copper mines fairly characterised as such although commercial quantities of gold were also present which would be extracted as a by product.

156 The Cadia mines were gold mines within the Case of Mines. What relevantly remained within the range of the prerogative after the 1688 and 1693 Acts were all gold mines within the Case of Mines which were not copper mines fairly characterised as such. Since the Cadia mines cannot fairly be characterised just as copper mines, they remain gold mines within the reduced range of the prerogative and the Crown is entitled to the copper as well as the gold.

157 Section 11(1) of the Act is not relevant. The mining companies, operating in accordance with their mining leases, became the owners of the gold-copper ore on its severance, and could never have been sued for trespass to land, trespass to goods, or conversion. The question in this case arises under ss 282(1) and 284(2) of the Act, and is whether the copper in the ore was a publicly owned mineral or was privately owned. Since s 11(1) makes the miner the owner of all severed ore, immediately on severance, that ore by definition is then privately owned. If s 11(1) was relevant in the application of ss 282(1) and 284(2) all minerals in the State recovered by mining would be privately owned, and s 282(1) would have no effective operation.

158 Sections 282(2) operate on the ore in situ, prior to its severance, and the question of ownership must be determined at that time. Since I have concluded that these are gold-copper mines which are within the prerogative the appeal should therefore succeed.

159 I agree with the orders proposed by Basten JA.

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Citations

State of New South Wales v Cadia Holdings Pty Ltd [2009] NSWCA 174

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Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27

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Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28

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CITATION:	State of New South Wales v Cadia Holdings Pty Ltd [2009] NSWCA 174
HEARING DATE(S):	18 March 2009
JUDGMENT DATE:	1 July 2009
JUDGMENT OF:	Spigelman CJ at 1; Basten JA at 94; Handley AJA at 126
DECISION:	1 Allow the appeal and set aside the orders and declarations made in the Equity Division on 16 June 2008. 2 Declare that the copper in the specified land is a publicly owned mineral for the purposes of the Mining Act 1992. 3 Order that the respondents repay to the Minister all moneys paid to them in execution of the judgment in the Court below together with interest from the date of such payment until the moneys are repaid, calculated at the rate prescribed in the Fifth Schedule to the Uniform Civil Procedure Rules 2005. 4 Order the respondents to pay the appellants’ costs of the appeal and in the Court below.
CATCHWORDS:	CONSTITUTIONAL LAW - the non-judicial organs of government - the Crown – prerogative rights of the Crown – abrogation and modification of prerogative by statute - royal mines and minerals – Royal Mines Acts 1688 and 1693 - CONSTITUTIONAL LAW - imperial, colonial, state and Commonwealth Constitutional relationships - Imperial legislation – reception and operative effect in New South Wales – Royal Mines Acts 1688 and 1693 - ENERGY AND RESOURCES - minerals – ownership of minerals under prerogative – scope of prerogative over minerals intermixed with gold and silver - s 379 Mining Act 1992 - REAL PROPERTY - general principles - Crown grants – royal minerals need not be expressly reserved to the Crown - STATUTORY INTERPRETATION - acts of parliament – interpretation – rules of construction – purposive interpretation – acts of constitutional significance - Royal Mines Acts 1688 and 1693 - STATUTORY INTERPRETATION - acts of parliament – interpretation – utility of repealed statute in interpretation of subsisting statute.
LEGISLATION CITED:	Act of Settlement 1700 (UK) An Act to prevent Disputes and Controversies concerning Royal Mines, 5 Wm & M. c. 6 (1693) (UK) An Act to repeal the Statute made in the fifth Year of King Henry the Fourth, against the multiplying Gold and Silver, 1 Wm & M. c. 30, (“Royal Mines Act”) (1688) (UK) Australian Courts Act 1828 (9 Geo. IV, c 83) (UK) Bill of Rights Act 1688 (UK) Constitution Act 1855 Crown Lands Alienation Act 1861 Crown Land Sales Act 1842, 5 and 6 Vic c 36 Gold Fields Act 1861, 25 Vic 4 Gold Fields Act 1866, 30 Vic 8 Gold Fields Management Act 1852, 16 Vic 43 Gold Fields Management Act 1857, 20 Vic 29 Habeas Corpus Acts 1640, 1679 (UK) Imperial Acts Application Act 1969 Interpretation Act 1987 Magna Carta 1297 (UK) Minerals (Acquisition) Ordinance 1953 (NT) Mining Act 1874, 37 Vic 13 Mining Act 1906 Mining Act 1973 Mining Act 1992 Treason Act 1702 (UK)
CASES CITED:	Attorney General v Brown (1847) 1 Legge 312 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 Attorney General v Great Cobar Copper Mining Co. (1900) 21 NSWLR 351 Attorney General v Morgan [1891] 1 Ch 432 Attorney General of British Columbia v Attorney General of Canada (1889) 14 App Cas 295 Barton v The Commonwealth (1974) 131 CLR 477 Beaumont v Yeomans (1934) 34 SR (NSW) 562 British Coal Corporation v The King [1935] AC 500 Brodie v Singleton [2001] HCA 29; 206 CLR 512 Cadia Holdings Pty Ltd v State of NSW [2008] NSWSC 528 Case of Mines (The Queen v The Earl of Northumberland) (1568) 1 Plowden 310; 75 ER 472 The Commonwealth of Australia v The State of New South Wales (1923) 33 CLR 1 Edwards v Attorney General for Canada [1930] AC 124 In re De Keyser’s Royal Hotel Ltd; De Keyser’s Royal Hotel Ltd v The King (1919) 2 Ch 197 Jumbunna Coal Mine NL v Victoria Coal Miners’ Association (1908) 6 CLR 309 Kean v The Commonwealth (1963) 5 FLR 432 London & West Australian Exploration Co Ltd v Ricci (1906) 4 CLR 617 Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657 Mathieson v Burton (1971) 124 CLR 1 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Minister for Mineral Resources v Brantag Pty Ltd [1997] NSWCA 207; 8 BPR 15,815 R v Lavender [2005] HCA 37; (2005) 222 CLR 67 Ready Mixed Concrete (Victoria) Pty Ltd v FCT (1969) 118 CLR 177 The Rebeckah (1700) 1 C Rob 226; 165 ER 158 Ruddock v Vadarlis [2001] FCA 1329; 110 FCR 491 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 Wik Peoples v Queensland [1996] HCA 40; 187 CLR 1 Woolley v Attorney General (Vic) (1877) 2 App Cas 163 Woolley v Ironstone Hill Lead Gold Mining Company (1875) 1 VLR(E) 237
PARTIES:	State of New South Wales (First Appellant) Minister for Mineral Resources (Second Appellant) Cadia Holdings Pty Ltd (First Respondent) Newcrest Operations Ltd (Second Respondent)
FILE NUMBER(S):	CA 40266/ 08
COUNSEL:	MG Sexton SC SG, HR Sorensen (Appellants) AJL Bannon SC, RC Scruby (Respondents)
SOLICITORS:	Crown Solicitor (Appellants) Marque Lawyers (Respondents)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 4253/ 04
LOWER COURT JUDICIAL OFFICER:	Hamilton J
LOWER COURT DATE OF DECISION:	30 May 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	[2009] NSWSC 528